Word of the Week

In Camera

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.

More Icky Words!

A Pennsylvania law firm has tried - unsuccessfully - to banish all mention of "President Bush" from an upcoming trial.

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.

Word of the Week

Mayhem

“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.

The Fine Print

The Law Faculty of the University of Cape Town is about to give away valuable trade secrets. In August the university is holding intensive three-day seminars to teach lay people how to decipher legalese; or, at least, the legalese found in commercial contracts. According to South Africa's Independent Online, the course will "focus on the building blocks of legal language: the words, technical expressions, long sentences and complicated structures."

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.

Word of the Week

Barking Dog

"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.

Rape - without all the icky words

While presiding over a rape case, Nebraska Judge Jeffre Cheuvront had the bright idea of barring attorneys and witnesses from using words including “rape,” “victim,” “assailant” and “sexual-assault kit,” and ordered witnesses to sign papers saying they wouldn’t use the words. Words such as “sex” and “intercourse” were allowed. State law allows judges to bar words or phrases that could prejudice or mislead a jury. (Story from AP).

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!

Word of the Week

Habeas Corpus

Habeas corpus is a writ (that is, a procedure) for challenging the legality of a prisoner’s detention. In contemporary American law, it refers to a procedure by which the constitutionality of a state conviction and imprisonment can be tested in federal court. The words literally mean “you have the body”; however, the original name for the writ was habeas corpus ad subjiciendum et recipiendum which (very) roughly translated, means, “you have the body, so bring him to court and we’ll decide whether he ought to be detained.” In old common law procedure, there were a number of “habeas corpus” writs, such as habeas corpus ad testificandum, which directed that a prisoner be deliver to a court to give evidence. The writ that we all know and love was sometimes called the Great Writ or the Writ of Liberty to distinguish it from all the others.

Like all writs, it's better with cheese on top.

Hello, Earthlings!

This weekend marks the 60th Anniversary of the UFO crash in Roswell, New Mexico. According to reports, at least 35,000 UFO enthusiasts have descended on Roswell to celebrate.

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
(2) Touched
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.

The Art of Conversation

A couple weeks ago, Chicagoan Arthur Friedman won a verdict of $4,802 for alienation of affections.

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.”

Commuter Scooter

President Bush’s decision to commute the sentence of Lewis “Scooter” Libby left many Republicans hankering for a full pardon. So, what’s the difference?

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.

Commute comes from the Latin commutare (to alter), and is related to such words as transmute and mutation. Commuting is all about changing; for example, changing places. In the late nineteenth century, the railroads referred to season train passes as “commutation tickets.” Before long, the people who made use of those tickets became known as commuters.

The criminal law sense of commute is recorded as early as 1642, when British Scholar Thomas Fuller observed that some courts had a custom of “commuting whipping into money.” In the eighteenth century, commercial lawyers began using commutation to refer to the conversion of a periodic payment into a lump sum.

Pardon comes from French (as in pardonez moi) and ultimately from the Latin prefix per plus donare, or “to give.” As reflected in the word’s etymology, a pardon amounts to a gift to the offender. But even with a pardon, the conviction remains on the record, unless it is – now here’s a legal word – expunged.

Both commutation and pardon are examples of executive clemency: the power of presidents and governors to offer varying degrees of forgiveness to those convicted of crimes. Clemency comes from the Latin clementia, which means “forbearance,” but which also means “mildness” – from which we get the word clement to describe mild weather, and its opposite, inclement.

The President’s commutation order may be an example of clementia, but the political reaction suggests stormy weather ahead.

One little word

SCOTUSblog reports that a military judge at Guantanamo Bay has refused to reconsider his earlier ruling that a military commission does not have the authority to hold a war crimes trial of a young Canadian detainee, Omar Ahmed Khadr.

The detainee was certified by the Combatant Status Review Tribunal (CSRT) as an "enemy combatant." The problem is that the military commission has jurisdiction only over cases involving "unlawful enemy combatants," and the CSRT left the unlawful bit out.

The Military Commission Act defines "unlawful enemy combatants" to include members of al Qaeda. According to prosecutors, the CSRT did find that Khadr was a member of al Qaeda but -- for whatever reason -- did not give him the unlawful designation.