In today's New York Times, yours truly weighs in on the punctuation and grammar of the most tortured sentence in the Bill of Rights. Take a look - if you like the article, please email it on to a friend! (At the time of posting, the column is #4 in the "most emailed" category at NYT).
Sunday, December 16, 2007
In today's New York Times, yours truly weighs in on the punctuation and grammar of the most tortured sentence in the Bill of Rights. Take a look - if you like the article, please email it on to a friend! (At the time of posting, the column is #4 in the "most emailed" category at NYT).
Latin (literally, "directed at the thing"). The phrase describes the fundamental character of a legal proceeding as focused on a particular piece of property rather than a person. In an "in rem action" the plaintiff generally seeks judgment declaring the status or disposition of certain property. In rem actions are often brought by the government, and you can always spot one from the case name; for example: United States v. Ten Bottles of Scotch Whisky, 48 F.(2d) 545 (C. C. A. 2d. 1931). But be careful: sometimes the property sues back, as in Three Half-Pipes of Brandy vs. United States (1858).
Sunday, December 9, 2007
Although it sounds like an impromptu song, chance-medley is an archaic term from criminal law that refers to a killing during a sudden fight. When the killing is not judged to be in self-defense, then the crime was known as manslaughter by chance-medley. Originally, the term applied to the the fight itself -- it is meant to convey the sense of a sudden and unexpected brawl. (See Random House Webster's Dictionary of the Law).
Sunday, December 2, 2007
Verb: To put or send into circulation a forged document or instrument. Federal criminal law uses the formulation "utters [or] publishes" in defining various counterfeiting and forgery offenses. The same language can be found in state statutes, such as Section 248a of the Michigan Penal Code: "A person who utters and publishes as true any false, forged, altered, or counterfeit financial transaction device, as defined in section 157m, with the intent to injure or defraud any person is guilty of a felony."
Hayton argues for greater clarity in legal writing -- and he rails against the rise of gobbledygook, citing (drumroll, please), our very own Legalese Hall of Shame. Thanks Tom!
Another participant at the reading was University of Houston law professor David Crump, who I take to task in my book for opposing some "plain English" reforms. Turns out that Crump is himself a master of the sonnet; having published a book of 52 (one per week). Hats off to Professor Crump.
Watch this space -- POFP will be publishing an article about the use of poetry in judicial opinions soon!
Sunday, November 25, 2007
Saturday, November 17, 2007
As the DC Legal Times reports, the grammar war is under way.
With impeccable legal logic, "civil death" is a term that can only apply to people who are perfectly alive. But some living people -- and here we're talking about felons -- are deemed to be "civilly dead," meaning that they have forfeited all civil rights, such as the right to sue or vote. Various state statutes have enshrined civil death, such as the Utah code that declared, somewaht oddly that a life prisoner is "deemed civilly dead" -- and yet, even a civil corpse was allowed to make conveyences. Watch out for "Night of the Civilly Dead" at a theater near you!
Oddly enough, the concept of civil death came from Church law. In the thirteenth-century, the legal scholar declared that monks experienced mors civilis (civil death), in that they could not sue or be sued, or hold property. These days, of course, civil death is a concept that prisoners rights groups are trying to bury.
Update: Jim Rose points out that he addresses "civil death" (humorously) in the context of cryogenic freezing in his book The Supreme Court Jester. Read the passage here.
(I also explore the legal language of cryogenics, cloning, UFO's and other futuristic phenomena in Chapter 10 of my book, The Party of the First Part.)
Sunday, November 11, 2007
Legislative drafters take a long time to reach the period. Judge Mark Painter, an appellate court judge in Ohio and an expert on legal writing, recently illustrated the point in LawyersUSA. Painter quotes an Ohio statute consisting of a single 326-word sentence. The sentence can be found, appropriately enough, in Party of the First Part's Legalese Hall of Shame.
In his article, Judge Painter shows how to cut this mess down to a reader-friendly 155 word statute with sub-points and even a bit of punctuation thrown in. Well done, your honor! According to Judge Painter, it took him about an hour to accomplish his revision. Can't the legislature spare as much time?
Saturday, November 10, 2007
In classical Latin, posse means “to be able to” or “to have power to,” lawyers sometimes use the term in posse, which means “in potentiality.” This is contrasted with in esse (“in existence”). For example: “The term ‘grandchildren’ in the will was interpreted as meaning grandchildren in esse and in posse.” (Random House Webster’s Dictionary of the Law).
But what about the sheriff’s posse? In that usage, posse is short for posse comitatus, which means “the force of the county” (in post-classical Latin, posse took on the meaning of “force”). In English common law, the posse comitatus was every able-bodied man over the age of fifteen in a county, whom the sheriff could summon to quell a riot, to pursue a felon, or – who knows? – maybe even to round out a foursome for bridge. In the UK, the sheriff’s ability to summon a posse remained valid (at least, in posse) until 1967. In various US states, the county sheriff retains this power still. Section 150 of the California Criminal Code, for example, requires that “every able-bodied person above the age of 18” join the posse comitatus when summoned to do so by local authorities. – or face a fine between $50 and $1,000. So be ready to saddle up when duty calls!
(Thanks to Taran Johnston, Ph.D., for inspiring this entry.)
Sunday, November 4, 2007
A brief is a written argument that is submitted to a court as part of a lawsuit, and it is a fair question to ask why something called a brief is usually anything but. Granted, brief is related to the Latin brevis, meaning short. Its immediate ancestor, however, is the noun breve, which refers to a letter issued by the Pope, less solemn than a papal bull, but authoritative nonetheless. This is where we get the legal sense of brief, which was originally synonymous with writ, an old-fashioned term for a document that initiates a lawsuit.
So a brief is not by definition a short document, but it doesn’t have to be long one either. In America, up to the early twentieth century, legal briefs typically consisted of just a few pages of legal citations and argument. In the 1908 case of Muller v. Oregon, a prominent Boston lawyer named Louis Brandeis caused a sensation by submitting a 113-page brief, bristling not only with case citations, but with medical and legal statistics to support his argument. After Brandeis won the Muller case; courtrooms across the country were flooded with briefs resembling Homeric epics – they became known as Brandeis briefs.
At times, it’s downright readable.
The new FRCP is the result of a three and a half year effort to make the rules more reader-friendly. It is just one example of a growing “Plain English” movement that aims to sweep away the cobwebs of legalese in official documents.
Over the past year, programs to convert government regulations into plain English have taken hold on the state and federal level, while existing plain language standards are being more vigorously enforced. At the same time, jury instructions are being rewritten in various jurisdictions to make them more accessible. Bad news for insomniacs.
None of this involves changing the underlying legal rules; rather, this is a movement to change the language of the law. In the case of the FRCP, the Judicial Conference of the United States went so far as to insist that the new version had merely been “restyled,” presumably to allay any fear that the rules had been, as it were, resubstanced.
But as Professor Joseph Kimble, who led the drafting effort, points out, “good style improves substance” – if nothing else, by clarifying the substance. In the process of redrafting the rules, “we caught one inconsistency and ambiguity after another,” says Kimble. The restyling effort brought consistency to the seemingly indiscriminate use of terms such as for cause, for cause shown, for good cause, and for good cause shown.
The quest for greater clarity has led to some surprising results. For one thing, the word shall has now been banished from the Federal Rules.
The problem with shall is that it leads to confusion. Language experts agree that in legal documents, shall means “must.” But in the current FRCP, shall is often used to mean “should” or “may.” In the restyled rules, each instance of shall is replaced by a more accurate word.
“All the shalls are gone,” says Kimble triumphantly. It’s not at all clear where all the shalls went – one hopes to some sort of linguistic retirement home where they play shuffleboard with mesne process and try to avoid squabbles with the arguendo’s.
Many other convoluted rules are headed for retirement this December. Consider FRCP 8(e)(2), which concerns pleading in the alternative:
Current Rule: When two or more statements are made in the alternative and one of
them if made independently would be sufficient, the pleading is not made insufficient by the insufficiency of one or more of the alternative statements.
New Rule: If a party makes alternative statements, the pleading is sufficient if any one of them is sufficient.
See? The meaning is the same, but reading it feels distinctly less like banging one’s head against the wall. Alas, a restylist’s work is never done. The Advisory Committee on Evidence Rules may soon begin revamping the Federal Rules of Evidence – including its 42 shalls.
In May of this year, Congress passed legislation requiring federal agencies to produce plain-English compliance guides for small businesses. A more sweeping measure, which would actually define “plain language” and require each agency to appoint a plain language coordinator, enjoyed bipartisan support in the last Congress, only to get lost in the shuffle following the midterm elections. Supporters hope to get it re-introduced in this Congress.
The Securities and Exchange Commission has resuscitated plain English rules it put in place ten years ago. In April of this year, the SEC cited 40 companies for submitting proxy statements that failed to meet the Commission’s plain language guidelines.
Legalese is under attack at the state level, too. In January, Governor Charlie Crist announced the Florida Plain Language Initiative, which requires each state agency to form a team of writers, editors, and policy experts to improve the agency’s public-facing documents. On his website, Crist declares that “it makes no sense to talk to people in bureaucratic legalese.”
Unfortunately, not everyone on the Governor’s own staff has got the hang of plain English. The Executive Order announcing the Plain Language Initiative starts out with a full page of superfluous "whereas" clauses, followed by
NOW, THEREFORE, I, CHARLIE CRIST, as Governor of Florida, by virtue of the authority vested in me by Article IV, Section (1)(a) of the Florida Constitution, and all other applicable laws, do hereby promulgate the following Executive Order, to take immediate effect:
Meanwhile, in California, new plain language criminal jury instructions took effect last year. Whereas the old instructions were notorious for their stilted language, the new instructions tend to be written in everyday English. To take one widely-cited example:
New: People sometimes honestly forget things or make mistakes about what they remember.
A number of states, including New York and New Jersey, have approved new instructions on the all-important definition of “guilt beyond a reasonable doubt.” Old “pattern” jury instructions tend to define the burden of proof in abstract terms – telling jurors that they must possess a “moral certainty” or an “abiding conviction” regarding the defendant’s guilt. The new instructions explain to jurors that they should vote for a conviction only if they are “firmly convinced” of the defendant’s guilt.
The battle against legalese goes way back. The cause has been championed by all sorts of politicians, from the sixteenth century monarch Edward VI, who urged Parliament to make statutes “more plain and short,” to President Jimmy Carter, who railed against “gobbledygook” (a word, incidentally, that was coined in 1944 by Texas congressman Maury Maverick who was trying to evoke the sound that turkeys make).
One reason for the recent upsurge in plain English reform is the mounting evidence of the high price of legalese. “The cost of bad writing in government and business is staggering,” says Kimble, whose 2006 book Lifting the Fog of Legalese is itself a call for plain language in law.
In the early 1990’s, for example, the Department of Veteran’s Affairs took one form letter that was written in legalese and translated it into plain English. Over the next year, the number of telephone calls to the VA asking for clarification of that letter dropped by about eighty percent. The VA concluded that adopting that single letter nationwide would save it $40,000 a year – an enormous sum when multiplied by all the letters and forms sent out by all government agencies.
A Pentagon study estimated that the US Navy could save up to $350 million a year if its internal memoranda were all written in plain English. But then, the military brass does have a certain penchant for gobbledygook: its specifications for standard-issue fruitcake run to eighteen pages.
Even more alarming is the human cost. Law professor Peter Tiersma has exhaustively studied jury instructions and concluded that “there have probably been dozens of people who have been condemned to die by juries who poorly understood the legal principles that were supposed to guide their decision.”
Small wonder that there’s been a backlash against traditional legal language. That’s not to suggest that lawyers should expect hordes of pitchfork-bearing townsfolk camped outside their offices. But still, when even court rules start showing up in plain English, it might be time to reconsider one’s attachment to witnesseth.
And if you still need something to lull you to sleep at night, there’s always the Tax Code.
Sunday, October 28, 2007
Saturday, October 27, 2007
The Central Pacific Railroad has a charming online "Photographic History Museum" which can be found here. From the Home page, click on "Legal Notices" to find a truly egregious Users Agreement, here. Kudos to reader Phil Venton for unearthing this.
The User Agreement goes on for over 31,000 words. When cut and pasted into word (and made a uniform 12 pt font), The Agreement stretches over 57 pages. It contains 44 "herein's." The integration clause (usually "this contract represents the entire agreement between the parties") is a 640-word monster. If you send the website an image, they are free to use it -- but in this Agreement it takes a 766-word sentence to say so.
What's truly odd is that the owners of the website want you to know that they have a sense of humor about the whole "law" thing by peppering the entire Agreement with jokes. For example, in the Force Majeure clause (one of two force majeure clauses, actually), they warn that an "Asteroid Impact," "Vulcanism" or "Ice Age" would void the Agreement. Hilarious, of course -- but the Agreement is no joke, as the authors say at the opening: Don't be put off by the legalese, but please read these terms and conditions of use carefully before using this website, because you are bound by them. In other words, you have to wade through all 57 pages of this -- including our lame attempts at humor if you want to know what your rights are.
Finally, the site owners seem to have gone out of their way to make the User Agreement difficult to read online. I can't put it better than Mr. Venton, who commented that the webpage "appears to have been designed by a burlap sack full of color-blind hedgehogs." Actually, that's not entirely fair to color-blind hedgehogs.
Your readers might be interested to know that in Lakewood, Ohio, houses were considered blighted if they lacked attached two-car garages, three bedrooms, or two full bathrooms; even the Mayor's house was blighted under this definition (More information on the Lakewood case is available here: http://www.ij.org/private_property/lakewood/backgrounder.html). And if you or your readers would like to see what "blight" looks like, you can check out pictures of these charming houses from Norwood, Ohio, all declared "blighted": http://www.ij.org/private_property/norwood/norwood_homes.html
As a New York City resident, turns out that most of my friends and I have lived in blight conditions for years. But then we suspected as much. Fortunately, Paul's organization, Institute for Justice, was able to help prevent the condemnation in both of these cases.
Sunday, October 21, 2007
Saturday, October 13, 2007
The Arkansas legislature passed a law intended to set the minimum age to marry in Arkansas at 18, with the exception being pregnant teens who have parental consent. But the operative paragraph of the law says:
In order for a person who is younger than eighteen (18) years of age and who is not pregnant to obtain a marriage license, the person must provide the county clerk with evidence of parental consent to the marriage.
Because of that extraneous "not" anyone can legally tie the knot in Arkansas, even toddlers and infants. And why not? Probate law has long recognized the doctrine of the "Precocious Toddler," i.e. the legal fiction that even young children are capable of procreation. In any event, the governor declined to call a special session of the legislature to fix the problem; instead ordering a special "Code Revision" committee to fix it as a technical error.
No harm? It didn't take long before the "notty problem" ended up in litigation. The mother of a 17 year old woman who gave her daughter permission to marry sued local officials in Benton County when they refused to issue a marriage license. The court found that the Code Revision Committee had no business removing the "not" from the law -- only the legislature can make substantive changes to the law.
Governor Beebe's office says that it still does not have plans to call a special session -- but that "not" might be a mistake.
Monday, October 8, 2007
A Supreme Court ruling last Spring sent shockwaves through the already-litigious world of intellectual property by making it easier to challenge the validity of a patent. Patent reform legislation currently making its way through Congress threatens to further upset the apple cart.
Much of the controversy turns on the definition of a single word, and it’s obvious. That is, the word in question is “obvious.”
One of the conditions for a valid patent is that it be “non-obvious.” In other words, the invention being claimed must represent an advance over existing technology which in patent law is known as the prior art.
And when patent lawyers say “prior,” they mean way, way prior. In 1976, the Supreme Court invalidated a patent for a supposedly novel method of using water to flush manure out of dairy barns. The Court held that the patent was “obvious,” citing, among other authorities, the fifth labor of Hercules, in which the superhero used water to clean the Augean stables. So if you were thinking about patenting a method for parting the Red Sea, don’t bother. That one’s obvious too. Cf. Exodus 14:21.
The idea behind the obviousness test is that granting a patent, which amounts to a temporary monopoly to exploit a particular technology, should be limited to true innovations. In last April’s decision in KSR v. Teleflex, the Supreme Court held that a patent for a car gas pedal with an electronic sensor that adjusts to the driver’s height was – duh! – obvious.
Well if that’s obvious, one wonders about the fate of other patents. McDonald’s, for example, has a 55-page application seeking to patent “a method and apparatus for making a sandwich.” The document includes such innovative thoughts as “it is advantageous for sandwiches to be served when freshly made.” The method proposed by McDonald’s involves combining meat, cheese, and garnish within toasted “bread components.” Look out world!
In any event, the definition of obvious has become the key battleground in patent law. Obvious comes from the Latin ob (“in view of” or “towards”) plus via (“way”) – suggesting, metaphorically, something that lies in the way. In everyday English, there are many gradations of obviousness. It’s one thing to say that obvious means “plain as the nose on your face” and it’s another thing to say that it means “evident, if you just gave it a moment’s thought.”
Ultimately, the meaning of obvious comes down to this: obvious to whom? To the man on the street, or to Stephen Hawking? In patent lingo, the answer is, obvious to Mr. or Ms. Phosita – “Phosita” stands for a “Person Having Ordinary Skill In The Art”. Hypothetical persons such as Mr. Phosita often spell trouble for lawyers – think of the Reasonable Man of tort law, who seems so saintly at first, but then is always out riding an omnibus when you really need him.
Courts have long debated what sort of person Mr. Phosita really is. Earlier precedents imagined him as a fairly passive person; therefore, an invention was deemed obvious only if the prior art contained some “teaching, suggestion, or motivation” that would have nudged Mr. Phosita toward making the same discovery.
But in KSR, the Supreme Court gave Mr. Phosita a facelift, describing him as “a person of ordinary creativity, not an automaton.” As a creative person, Mr. Phosita might find a method for combining meat, cheese, and bread to be “obvious” even if he hadn’t read about it in The Sandwich Quarterly.
These competing views of Mr. Phosita are just the latest in a long struggle to come up with a verbal formulation that captures the je ne sais quoi of patentability. In America, the struggle began with the Patent Act of 1793, drafted by Thomas Jefferson, which limited patents to that which is “new and useful.”
In 1850, the Supreme Court struck down a patent for the making of porcelain doorknobs on the ground that it represented “the work of the skilful mechanic, not that of the inventor.” The Court thus created a somewhat arrogant hypothetical “inventor” who sneers at the work of mere mechanics (“You call that prior art? My three-year-old daughter could’ve invented that.”)
In 1880, Supreme Court Justice Noah Swayne urged an even more exacting standard for patentability, saying that a valid patent must reflect “a flash of genius.” In 1950, Justice William Douglas raised the bar higher still, saying that a patent must “push back the frontiers of chemistry, physics and the like . . .” Basically, nothing short of a Buck-Rogers-style ray gun would qualify.
The Patent Act of 1952 replaced the Swayne and Douglas formulations with the current test of non-obviousness “at the time the invention was made.” The patent reform legislation before Congress would shift the goalposts by requiring that the invention must not have been obvious at any time “before the effective filing date of the patent.”
Patent law has other linguistic oddities. “Patent Troll” – a term reportedly coined in 1991 by Peter Detkin, former general counsel of Intel – is a person who obtains patents solely for the purpose of launching infringement suits. A troll is a creature from Scandinavian mythology usually found living under a bridge or in a cave, just waiting to abduct a princess or file a complaint. In 2006, Research in Motion paid $612 million to settle a patent troll lawsuit.
A predecessor of the troll was the “submarine patent.” A submarine patent is one that is filed secretly and then “surfaces” years later, usually in the context of an infringement suit. Before 1995, the period of patent exclusivity began on the day the patent was published, but an inventor could file his or her application and then delay publication for years. Now, however, patent exclusivity begins on the date of the earliest filing, so the modern troll has no incentive to delay publication. Besides, trolls don’t like submarines – they can’t reach the periscope.
Every patent applicant, be they troll or Thomas Edison, must contend with an archaic rule requiring that all patent claims consist of a single sentence, no matter how complicated the subject matter. The “single sentence rule” does not appear in any statute; rather, it has simply been a part of Patent and Trademark Office practice ever since 1836. In 1995, the DC District Court upheld the PTO’s rejection of a patent because the applicant had (horrors!) broken up his claim into nine sentences. Indeed, the court held that the insertion of a period anywhere in a claim, except for abbreviations, would be fatal.
Patent law also has a distinctive set of verbs. A patent does not describe its subject matter; rather, it “reads on” the relevant technology. Actually, thanks to the single sentence rule, it reads on and on and on. Be that as it may, patent lawyers say things like “the ‘123 patent [patents are known by the last three digits of the patent number] reads on gas pedal technology” or – in the case of infringement – that “the ‘123 patent reads on the ‘456 patent.”
When describing the essence of a patent’s invention, the operative verb is “to teach,” as in “the ‘789 patent teaches a method for combining meat, cheese, and bread to make a sandwich.” It’s a much nicer image than trolls or submarines – instead, patents are seen as public servants, each one up at a chalkboard, teaching us an incremental lesson in modern living. It’s just that sometimes patents teach stuff that is, like, so obvious.
Sunday, October 7, 2007
A very old type of lawsuit to recover property (or the value of property) that was wrongly taken away. The person who takes your property is said to have "converted" it to his own use; sometimes, the action of trover is referred to as "trover and conversion." Trover is an archaic Anglo-French word meaning "to find" -- in modern French it's trouver. In English common law, the plaintiff in a trover case was required to plead that he lost his property and that the defendant had happened upon it.
You can still bring a case for trover in state court. Or at least, there are legal form companies that will sell you pre-printed trover complaints.
Saturday, September 29, 2007
Not exactly a word, granted, but an abbreviation typically found at the beginning of an affidavit or other sworn statement, when listing the venue of the affidavit: "State of New York, County of New York: ss."
Unfortunately nobody can remember exactly what those two little letters stand for. They come from an old system of Latin notation known as “court hand," so it's safe to say that they stand for something in Latin. The abbreviation is sometimes said to be short for scilicet (one may know); but other suggestions include subscripsi, sans, sacerdotes, sanctissimus, Spiritus Sanctus, and sunt. Black’s Law Dictionary will only go so far as to say that it is “commonly . . . supposed to be a contraction of ‘scilicet’.” And yet, no self-respecting lawyer will draft an affidavit without it.
We thought that we would never see/ A suit to compensate a tree.
Wednesday, September 26, 2007
The New York Post reports on the long-running battle over the estate of Johnson & Johnson heir John Seward Johnson, Jr., who established a trust in 1961 for the benefit of his children and grandchildren and their "spouses." Broadway producer Marty Richards was married to one of those children -- Mary Lee Johnson -- until Mary Lee's death in 199o. Despite Mary's death, Richards claims that he is still a "spouse" within the meaning of the trust.
In 1996, a Superior Court judge ruled against Richards, holding that widowers don't count as "spouses." But then an appellate court reversed, ruling that widows remain spouses, although divorcees do not. As they say on Broadway: on with the show!
Friday, September 21, 2007
- First Place: an "Information" filed in Oklahoma State Court (featuring a 1,028 word sentence!), submitted by Paul Sherman of Virginia.
- Second Place: a ghastly pre-nuptial agreement, submitted by a lawyer who wishes to remain anonymous.
- Third Place: a court pleading from New Jersey Superior Court, submitted by Cynthia Covie Leese, a retired Judge who, once upon a time, actually had to wade through that pleading. She was not persuaded!
- Dishonorable Mentions go to: Joel Wakefield; Ken Adams (of Adams Drafting); David Dickinson; and Mila Zain.
All of the Winning submissions, and the Dishonorable Mentions, are available at the Legalese Hall of Shame! Thanks to everyone who submitted entries to the contest!
A noun that refers to dilapidated (usually urban) districts. Although the term has been around for years, its importance increased after the Supreme Court's 2005 decision in Kelo v. City of New London, which made clear that the federal courts would not stop local governments across the country from condemning private property for economic development. One of the most common reasons for condemnation is a finding of "blight" under state law. Different states define "blight" differently, but typically the word applies to an area in which the structures are unfit or unsafe to occupy because of defective design or construction; faulty layout or overcrowding; insufficient light, sanitation, and open space; and even economic dislocation “resulting from faulty planning” -- but then, why let the same planners have another go at the neighborhood?
Sunday, September 16, 2007
The final blast of legalese in many wills, this phrase emerged from a prolonged struggle among lawyers to find just the right words to describe the leftover bits of one’s estate.
Rest, residue and remainder has been described as a “ritual utterance” – a sort of incantation that lawyers hope will bring good luck. There is no particular technical significance to any of those words, although lawyers do occasionally take a stab at creating bogus pedigrees for them. In the eighteenth and nineteenth centuries, some courts followed the English case of Hogan v. Jackson, in which the court decided that “remainder” referred to real estate, while “residue” referred to personal property.
The phrase does evoke English law's fascination with poetic rhythm, as heard in such formulations as "the truth, the whole truth, and nothing but the truth." Anglo-Saxon law, you see, emerged from an oral tradition in which legal phrases were memorized as semi-poetic verses.
Friday, September 14, 2007
Tuesday, September 11, 2007
In 1908 Louis Brandeis caused a sensation when he filed a 113-page brief in Muller v. Oregon. For a time, long briefs were known as "Brandeis Briefs." Now, presumably, they'll be known as O'Melveny briefs.
Sunday, September 9, 2007
Perhaps the most interesting linguistic feature of the case -- apart from the dilution of words like "reckless" -- is Bull's statement that, after she spilled the salt, a co-worker "tried to thump the salt off." Thumped?
Thanks to the Manage Your Writing site for pointing this out.
Saturday, September 8, 2007
This week's topic is "Trespassers will be Prosecuted." There'll be a new podcast each week for the next six weeks. You can listen for free at any of the following venues:
iTunes, click here.
Pod-Planet, click here.
Podfeed, click here.
Podcast Alley, click here.
Odeo, click here.
This phrase is part of the current legal test for obscenity: material is said to be obscene if it "appeals to a prurient interest." A prurient interest is defined as "an unacceptable interest in sex." Unacceptable to whom?, one might ask. The answer is: to the judge or jury in a particular case. Oh well, the word comes from the Latin purire, meaning "to itch," and thus has the sense of an itching or burning desire.
Ever since the sub-prime debacle, the Prurient Interest rate has gone up to almost 5 percent.
Thursday, September 6, 2007
The jurors say they don't want to look up legal terms. They say they just want to check common definitions of English words. Federal Judge James Zagel told defense attorneys and prosecutors that he prefers not to send jurors the dictionary. He'll instead ask the jury to give him a list of the words they want defined.
Why the reluctance to give the jurors a dictionary? True, dictionaries may give multifaceted and confusing definitions, but if we trust jurors to sift through ballistic evidence, why can't we trust them to navigate Websters? Heaven knows, but judges are notoriously reluctant to define terms for the perpetually-confused jury members. Peter Tiersma has chronicled some of the worst abuses of enforced jury ignorance (like refusing to explain to jurors what aggravating and mitigating mean) in his book Legal Langauge. And I discuss the "language barrier" faced by jurors in this column.
Tuesday, September 4, 2007
The entries are starting to come in... there are some great examples of bad legalese, but at this point, the competition is wide open. So submit your favorite example of exquisitely bad legalese! Post it in a comment, or email email@example.com
- The Amazon page is here;
- Barnes & Noble here;
- Powell's books, here;
- Also, the book will soon be available via thebillablehour.com.
Saturday, September 1, 2007
One of the oldest torts, a nuisance is any condition or activity that interferes with a person's "quiet enjoyment" of his or her property. The word comes from the Latin nocere (to hurt), from which we get such related words as annoyance, noise, and noxious. A public nuisance is an unreasonable interference with the public's health, safety, peace or convenience.
The doctrine of nuisance gives rise to the delightfully oxymoronic attractive nuisance, refers to dangerous conditions that might be positively inviting to certain people (think children wandering on to a construction site). Attractive nuisance is sort of like "willful negligence" -- only lawyers could come up with these terms.
Thursday, August 30, 2007
For those who don't know Grammar Girl, she is one of the nation's top podcasters, with fun and informative broadcasts about English language and usage. This week, I'm discussing the topic of "Readability" -- specifically how the rules for creating clear legal documents can be applied to any document.
Grammar Girl's podcasts can be found on i'Tunes or at the Grammar Girl website.
He's got a ballad about promissory estoppel, a blues anthem called "12(b)(6)" . . . and then, there's Mens Rea:
Oh, mens rea,
It's a guilty mind
The girl gives me mens rea
And actus reus isn't far behind
Tuesday, August 28, 2007
Saturday, August 25, 2007
As a reminder - we're looking for bad legalese. Exquisitely bad. Kind of like the Bulwer-Lytton Prize for the worst opening line of prose ("It was a dark and stormy night. . . . ").
To enter the competition, send me the best example of bad legalese you can find -- you can either post an entry here at the blog, or email me at firstname.lastname@example.org.
The winning entry and runners-up will be posted to the Hall Of Shame on the POFP website -- and the person who submits the winning entry will get a signed copy of my new book, as well as the new audio book from star podcaster Grammar Girl, Anonymous Lawyer by Jeremy Blachman, and Lifting the Fog of Legalese by Joseph Kimble.Good luck!
- iTunes, click here.
- Pod-Planet, click here.
- Podfeed, click here.
- Podcast Alley, click here.
- Odeo, click here.
A Latinate term for theft, larceny can be traced to an English law of 1225 which sought to punish those who stole deer from the royal hunting parks. The crime was given the name latrocinium (from the Latin latro, or thief), later anglicized to latrociny and finally larceny. The next larceny statute came fifty years later and was also, bizarrely, limited to the theft of the king’s deer. Could it be that for fifty years the British Crown had nothing more pressing than to crack down on deer theft?
Monday, August 20, 2007
Safire praises POFP as a "lighthearted but lucid explanation of legalese." He also recommends Send: the essential guide to email for office and home, by David Shipley and Will Schwalbe; and A Century of New Words, by John Ayto.
Sunday, August 19, 2007
In "Law is Code," Artur Bergman discusses a program that (somehow) turns text into these nifty visualizations with lines and dots and such. When they ran the US Code through the program, it churned out this very, very dense picture of criss-crossing lines. Mr. Bergman's comment:
Legalese is a massively structured dialect. Symbols appear in very distinct patterns that are more reminiscent of machine code than text.
Which isn't entirely fair to machine code. Yes, legalese contains more structure and repetition than normal English. But that doesn't mean it achieves precision. In machine code, a word may denote some tangible reality ("widget"), whereas the common words in legalese denote abstract concepts ("reasonable").
Or so it seems to me it seems to me it seems to me it seems to me.
Saturday, August 18, 2007
Governor Arnold Schwarzenegger is pushing hard for a major California health care reform. Never mind the politics of the whole thing, the Governor is having terrible trouble over language (not Arnold's usual ESL troubles).
Schwarzenegger's health care plan would be funded by a 4% payroll . . . what? Tax, of course. Except that the plan's supporters call it a "fee." Arnold himself has tried a variety of names for the tax: for a while it was a "coverage dividend." Earlier in the year, he told the Sacramento Bee, "It is not a tax, just a loan." (Hey, you mean taxpayers can get it back, with interest?) Nowadays, he's taken to calling it a levy.
POFP can forgive a new tax, but we can't forgive these "linguistic tricks," as John Fund of the WSJ.com puts it. As Fund points out, Arnold's lingo is on par with such gems as "revenue enhancements" and "solidarity payments."For more on the wonderfully taxing vocabulary of government revenues, see my earlier column, Death and This.
In Latin, jurat means "he swears" (from jurare, to swear). In English, it's a noun. It is the common name for a notary's certificate: the little burst of legalese at the end of an affidavit saying "Sworn to and subscribed before me this ___ day of ___ , etc."
The word is also used generally to refer to any person who has sworn an oath. In the Channel Islands (Jersey, Guernsey, and Alderney) a jurat is a type of magistrate, appointed for life. According to Black's Law Dictionary, juration is the act of swearing. Of course, that's also the way an Englishman says "duration."
Wednesday, August 15, 2007
Submit your favorite bad legalese - either post it as a comment; or email POFP at email@example.com.
Sunday, August 12, 2007
The term "gobbledygook" was coined by a Texas congressman, Henry Maverick. He meant for the word to evoke the sound that gobbling turkeys make. The word was meant as an indictment of confusing legalese and officialese.
But people have come to take legalese in stride; to which POFP says "Enough!
Send the worst example of legalese you can lay your hands on to POFP (firstname.lastname@example.org) -- and you can be the proud winner of the Golden Gobbledygook Award. The winner will get a boxed set (without the box) of my new book The Party of the First Part, together with Jeremy Blachman's Anonymous Lawyer, and Grammar Girl's new audiobook! The first two runners-up will also receive prizes. Entries will be accepted until September 14th. The winner will be announced on September 21st.
Looking for inspiration? Check out the Legalese Hall of Shame at POFP's website.
A generic name for any of the common law actions for the torts of alienation of affections, breach of promise of marriage, criminal conversation, and seduction. For more on these delicious torts, see my earlier post, The Art of Conversation.
On Tuesday (August 7), in the case of Abigail Alliance v. Eschenbach, the US Court of Appeals for the DC Circuit held that no such right exists, reversing last year's decision in the Abigail case by - the DC Circuit. In other words, the court reversed itself. Ooops.
The issue is clearly one of life and death, but in the courts it came down to a battle of semantics.
Read the rest on Huffington Post!
Anyway, Egerton was elevated to the post by Queen Elizabeth. After Elizabeth's death, Egerton sought to curry favor with the new King, James. He wrote the King a letter to assure him of his loyalty; he wrote "I have learned no waye but the King's highe waye . . ."
Is this the origin of the phrase "my way or the highway"?
Saturday, August 4, 2007
English is full of words in which there is a "hesitation" (as Fowler puts it) between the initial i- and the initial e-. Here is a fine example from the law.
A person indorses a document by signing it on the back, or as they say in Latin, in dorso (dorso, of course, being the root of the English dorsal, as in the dorsal fin of a shark). In Britain, people spell the word endorse while in the US, it’s indorse for checks and endorse for all other meanings. “Indorse” is the more traditional spelling; it was favored by Blackstone, who enthusiastically reported that the payee of a negotiable instrument may assign his rights “to any other man, by indorsement . . . and he may assign the same to another, and so on in infinitium.” I don’t think he meant that last bit literally.
Speaking of incomprehensible things, people at technorati say I have to put the following into a blog post:
Sunday, July 29, 2007
It's a Latin term, meaning "in chambers" or more generally, "in private." A judge's private office is known as his or her "chambers," as every viewer of Law & Order knows from the recurring scene in which a fed-up judge barks to the lawyers "In chambers -- now!" It's the legal equivalent of being taken to the woodshed. When the parties disagree as to the admissibility of document, the judge will often conduct an "in camera inspection" of the document, far away from the jury's gaze.
By the way, the judge's camera is related to Kodak cameras. The photographic variety is a shortened version of camera obscura -- a darkened room into which light is admitted through a double convex lens, casting an image on a suitable surface.
Friday, July 27, 2007
Here's the story (as reported by the Wall Street Journal Law Blog): an anti-war protestor is suing Upper Darby Township in Pennsylvania for "falsely arresting" him (whatever that means) during a Bush campaign stop in 2003. Lawyers for the Township moved to prohibit the plaintiff from mentioning President Bush during the trial - arguing that Bush's popularity rankings are so low that it would unduly prejudice the jury in favor of the plaintiff. Of course, by that logic the word "Congress" should also be banned from all courts.
Unlike the recent debacle in which "rape" and other icky words were banished from the courtroom (see here), this time the judge didn't buy it. "There is no requirement that trials be made up of the blandest theories, facts and arguments available," said Judge Gene Pratter.
Hooray for Judge Pratter. We like our language plain -- not bland.
Monday, July 23, 2007
“Mayhem” is the act of dismembering or disfiguring another person so as to weaken his ability to defend himself. It is a medieval term (surprise!) coming from the Anglo-Norman maihem or injury. It was originally both a noun and a verb. Prosecutors would bring a charge of mayhem by stating that the defendant “feloniously did mayhem” the victim. By the latter part of the 19th Century, the verb form gave way to the closely-related maim.
One is tempted to ask: wouldn’t any dismemberment weaken one’s defenses? Well, that’s not the way the law sees it. Traditionally, it was mayhem to chop off a limb, but not an ear or a nose because, as Blackstone blandly put it, “they can be of no use in fighting.” Needless to say, lawsuits over repetitive stress injuries didn’t get very far in the Middle Ages.
Let's hope the Law Faculty is also teaching its law students how to write in plain English, so that some day in the future consumers don't need a three-day course to read them.
Saturday, July 14, 2007
"Barking Dog" is defined as a dog that barks, bays, cries, howls or makes any other noise continuously and incessantly for a period of 10 minutes to the disturbance of any other person.
(Source: San Francisco Municipal Code, Art. 1, Section 41.)
Turns out, if a dog barks in the forest, and nobody hears him, then he's not a barking dog.
Friday, July 13, 2007
The idea - apparently - was to prevent the use of words that would unduly prejudice the jury against the defendant. The judge's move certainly didn't do the defendant any harm -- the publicity over the restricted vocab led the judge to declare a mistrial.
Did the judge have a point? Isn't language the way to protect the defendant's rights -- is the defendant covered by things like Miranda and evidentiary rules?
Update - a Pennsylvania court recently rejected a similar attempt to banish "prejudicial" words from the courtroom. See More Icky Words!
Sunday, July 8, 2007
POFP was there to celebrate with them. Not literally of course, but who else can provide legal lingo for our next close encounter?
Metalaw is the branch of law governing the relations between humans and other intelligent races. The field was launched by the late Andrew G. Haley in 1956, at a time when movies like Invasion of the Body Snatchers and The Man from Planet X fueled the popular feeling that flying saucers could land at any moment. Its founding principle is called the Great Rule: “Do unto others as they would have you do unto them” – which is the traditional “Golden Rule” rewritten to accommodate the fact that aliens may have different preferences from humans.
For the most part metalaw is a theoretical exercise, but the United States did enact an Extra-terrestrial Exposure Law in 1969. UFO enthusiasts charged that the purpose of the law was to keep ordinary citizens from contacting aliens. In fact, it was nothing more than an administrative regulation giving NASA the right to force returning astronauts to undergo a quarantine period. The law does at least provide a handy definition of extra-terrestrially exposed:
. . . the state of condition of any person, property, animal or other form of
life or matter whatever, who or which has:
(1) Touched directly or come
within the atmospheric envelope or any other celestial body; or
directly or been in close proximity to (or been exposed indirectly to) any
person, property, animal or other form of life or matter who or which has been
extra-terrestrially exposed by virtue of paragraph (b)(1) of this section.
The regulation even provides a hypothetical illustration of what persons might be forced into quarantine: “if person or thing ‘A’ touches the surface of the Moon, and on ‘A’s’ return to Earth, ‘B’ touches ‘A’ and, subsequently, ‘C’ touches ‘B’, all of these – ‘A’ through ‘C’ inclusive - would be extra-terrestrially exposed.” Which is why, before shaking hands with a stranger, it always pays to ask “have you been away from Earth lately?”
Metalaw is an offshoot of the larger discipline of space law, about which you can read more (much, much more) right here.
In plain English, that means he sued a man for stealing his wife's heart. Proving - as if more proof were needed - that for every grievance, there's a lawsuit just waiting to be filed.
Alienation of affections is an old-fashioned term, but then virtually all legal terms concerning sexual conduct have an archaic ring to them. Various states continue to recognize laws prohibiting fornication, seduction, solicitation of chastity, and criminal conversation - not to mention sodomy and buggery (although very little of those laws remain following the Supreme Court's decision in Lawrence v. Texas).
In this context, alienation does not refer to the existential estrangement that they talk about in college philosophy courses. In legal language, “to alienate” means to transfer one’s property, a usage that dates to the fifteenth century. Over time, lawyers developed a metaphorical sense of alienation, meaning the transfer of, or taking of, any possession, even intangible ones. That’s why the Founding Fathers described our fundamental rights as being “unalienable” – they can’t be taken away.
In a recent North Carolina lawsuit, a woman named Tamara Gilliam is demanding $20,000 from Beverly Hutchens Corbett for seducing Gilliam's husband. Gilliam claims that Corbett is guilty not only of alienation of affections, but also of the intriguingly-named criminal conversation.
Like alienation of affections, criminal conversation (also known as "crim. con.") is a cause of action that allows one spouse to sue a person who induces the other spouse to be unfaithful. It is actually the older of the two doctrines. Sir William Blackstone mentions the term in his Commentaries on the Laws of England (1765-69).
The “conversation” in criminal conversation refers to sexual intercourse, a sense that can be seen in Shakespeare’s Richard III, when Richard refers to Lord Hastings’ “conversation with Shore’s wife.” Of course it is not unusual for the law to preserve archaic meanings for everyday words – like using “fee” to describe an interest in real property (from fief).
The word “criminal” is also somewhat misleading in this context since crim. con. is not a crime at all, it’s a tort (as is alienation of affections). In other words, the state cannot prosecute someone for crim. con.; rather, the law allows private persons can sue each other. In any event, criminal here simply means “wrongful.”
Wednesday, July 4, 2007
To commute a sentence is to substitute a less severe punishment for the one originally imposed – but some punishment is still meted out. In Libby’s case, the President commuted the jail time, but left the fine and probationary sentence intact. A pardon, on the other hand, releases the convicted person of all punishment flowing from the offense.