Word of the Week

Grand

As in Larceny, or Jury, it simply means "big" (it comes from the French grand). A Grand Jury, for example, traditionally has 24 jurors, making it much more grand than the Petit Jury.

Under Medieval common law, Grand Larceny referred to the theft of any property worth 13 pence or more; anything less was "Petit Larceny." The distinction mattered because Grand Larceny had a mandatory death sentence.

Common law courts refused to increase the 13 pence definition of Grand Larceny. That was all well and good in the Middle Ages but -- what with inflation and all -- putting a man to death for stealing 13 pence began to look a little extreme. One English wit noted that, while everything else became dearer, a man's life kept getting cheaper. The ancient definition held up in England, and in America, until the early 19th Century.

News Flash: Lost Trousers Not Worth $54 Million

Update on the great American pants-suit; which I reported on here.

DC Superior Court Judge Judith Bartnoff has tossed out Judge Pearson's $54 million claim against the Chung's dry cleaning business. The case was all about words.

Pearson claimed that the words "Satisfaction Guaranteed" posted in the dry cleaning shop means that the cleaner must satisfy the whims of each customer -- or faces massive lawsuits. But the judge held:

"A reasonable consumer would not interpret 'Satisfaction Guaranteed' to mean that a merchant is required to satisfy a customer's unreasonable demands."

Which is, incidently, a great example of a tautology: a hypothetical reasonable consumer wouldn't use an unreasonable interpretation. Of course not, he would use the Judge's interpretation. No matter, it got the job done.

As for the Chungs, they say they have no hard feelings and that Pearson is welcome to patronize their shop any time. Come, come be reasonable!

Word of the Week

Force Majeure

It basically means an "act of God" but with a dollop of Grey Poupon mustard. The literal translation of the French words is "superiour force."

There are many French terms in Anglo-American law that date from the Medieval conquest of Britain by the Normans. But force majeure ain't one of them. Rather, the term was introduced into the Code Napoleon in the early 19th Century and didn't invade English law for another 100 years.

English legal dictionaries from the late 19th and early 20th centuries don't list force majeure. But the phrase started appearing in English contracts in the early 1900's with the first case discussing it in 1904. Common law courts have stated that force majeure encompasses more things than the phrase "act of God," but frankly, I don't see how that's possible.

There's No Business Like Small Business

What could be more inspirational than a young entrepeneur staying up late to . . . plow through Occupational Safety and Health Administration regulations?

A new law requires federal agencies to publish plain-language compliance guides for all regulations that have a "significant impact" on small business. According to Kiplinger, the new law makes clear that the guides must be available to the public at the time the new rules take effect.

Just one question: why limit this to regulations affecting small firms?

Herein, Legalese Interferes with Suds

State-mandated legalese has caused an upstate NY town to make the ultimate sacrifice: it's gone dry. The NY Times reports that the town fathers of Potter, NY wanted to grant one restaurant the right to serve beer and wine with meals. But NY law requires that any expansion of a town's liquor license requires a referendum with five mandatory questions, all phrased in garbled legalese. The town voters got confused, voted "no" on all the questions and ended up banning all sales of liquor in the town.

Vote for the funniest law blogs

This just in: the folks over at Legal Antics are conducting a poll for the world's funniest law blogs (not much of a competition one might think - sort of like the tallest building in Wichita - but you'd be surprised). Entries are accepted through Wednesday, June 19th. So hurry up and vote - I'll be stuffing the ballot box all night.

And if POFP doesn't win, we will demand a recall: a term I explore in this column.

Word of the Week

Escheat

The forfeiture of property to the State when no other person has a rightful claim to the property. English lawyers took the word from the Old French eschete, which meant "inheritance" (because if the landowner had no rightful heirs, then the Crown would "inherit" the land). Over time, escheat became an English word, cheat, which degenerated into a general term of abuse. So the law stuck to the traditional French spelling, while cheat has become a legal word in its own right, as a synonym for fraud (see Black's Law Dictionary).

Frivolity

Even in a legal-language website, words fail POFP when it comes to DC Judge Pearson's $54 million lawsuit against a local dry cleaner that damaged or lost (or whatever) his pair of pants.

One word that comes to mind is frivolous. In everyday English, it means light-hearted, but in legal language, it is code for "a meritless lawsuit." Why bring a meritless lawsuit? Well, it does pass the time, and it's a great tool for extorting money from people.

Overlawyered.com reports that a trial-lawyer interest group (Public Citizen) is pushing to limit the definition of "frivolous" so severely that - you guessed it - Judge Pearson's lawsuit would not be frivolous. So go ahead and sue the pants off of anyone you like!

Neologisms

Britain's Indepedent held a competition to coin new "collective nouns." A collective noun is a word like flock in the sense of "a flock of sheep," or brace in the sense of "a brace of pheasant,"

One of the winners was quibble, when used in the phrase a quibble of lawyers. According to the Independent:

A litigation of lawyers was popular and had the virtue of alliteration, but what are lawyers for if not to litigate? Ditto for brief. We felt quibble got to the heart of what people felt.

The Wages of Legalese

According to a recent report from the AP, shareholders are fighting back against corporate legalese.

The issue is executive pay. In the old days, tycoons like Cornelius Vanderbilt (see illlustration) never had disclose their income. Then the SEC came along and decided that shareholders had the right to know how much top executives make -- and so they required companies to include a Summary Compensation Table in their proxy statements. But with their litany of STIP’s, SERP’s, LTIP’s, SAR’s, and ISO’s, these tables usually end up looking like an eye exam, but without the humor.

For this year's proxy season, the SEC demanded that companies spell out the actual pay figures in English. According to the AP, however, the most recent crop of proxies are "long, complex and padded with legalese and jargon." The lack of transparency has led to victorious shareholder resolutions at a number of big companies, and has even prompted the House of Represenatatives to pass a bill giving shareholders greater control in setting executive pay.

Faux amis from the Volokh Conspiracy

Lest anyone doubt the seductive power of legal language, a recent post on the Volokh Conspiracy on "the legal historian's legal false friends" has attracted 100 comments in a matter of days. By "false friends," Volokh is referring to words that appear to be everyday English words with settled meanings, but which have very different legal meanings (or at least, which historically had different legal meanings). Think about terms such as "mayhem," which people use as a synonym for disorder; but it is a distinct common law criminal offense, meaning to injure or disfigure another person.

Word of the Week

Deem

Deem is a verb, meaning to consider, adjudge, or determine. The word often appears in boilerplate contract terms, as in “this offer shall be deemed accepted by the Seller” and in statutes, e.g. “volunteers under this chapter shall not be deemed Federal employees” (42 U.S.C. §5055). Fowler’s considers deem to be “a fairly formal word.” The word comes from Old English, meaning “to pronounce judgment.” On the Isle of Man, a judge is still referred to as a deemster. The noun form of deem is doom, a judgment (similarly, the noun form of meet is moot). Doomsday, then, is just another way of saying “judgment day.” The Doomsday Book is actually a nickname adopted in the 12th Century to describe the massive two-volume compilation of statistics commissioned by William the Conqueror in 1086.

Tittle Tattle

Who knew that gossip used to be a legal term?

In the early 20th Century, a number of states and cities passed anti-gossip statutes, according to the Wall Street Journal. Wisconsin and Kentucky outlawed gossip, and people were duly arrested and tried for the crime. In 1923, a Justice of the Peace in Brawley, California fined a woman for gossiping, and issued the following proclamation:

Ye people of the township of Brawley will no longer tolerate ye gossips who go about spreading ill-thought and ill-feeling.

Which is a good example of archaic usage in the law, although one suspects (hopes?) the JP was being ironic with his use of "ye."

Block that metaphor!

Something about politics inspires people to mangle the language. The Wall Street Journal recently asked a key Mitt Romney backer about Fred Thomspson's likely entry into the presidential race. The Romney guy said: "I think he'll find it tough sledding -- a lot of ships have sailed."

Excellent. Now let's write that immigration bill.

All this and orange juice too?

POFP recently learned that Florida Governor Charlie Crist launched a plain language initiative in January of this year! Why were we not informed of this earlier? The land of Disney is now poised to become a magical kingdom of crisp jargon-free sentences.

The basic idea is terrific - state agencies now have to give the reader a break by using active sentences and ordinary English.

Unfortunately, the Governor's own staff hasn't quite got the hang of it. 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:

You could replace all of that, as well as the "whereas" clauses, with something like: "I, Charlie Crist, have issued the following Executive Order." In fact, you probably don't event need that, since the governor signs at the bottom. Why not just write "Executive Order" at the top and start the document with Section 1?

But I don't mean to quibble with the Governor's lawyers. They are, one hopes, simply displaying their post-modern sense of irony by writing a Plain English law in legalese. Not for nothing, plain language reforms have been starting and stopping for 700 years -- as desribed in this 2002 column.

Be patient, Florida.

Word of the Week

Bottomry

Maritime law. A contract, in the nature of a mortgage of a ship, on which the owner borrows money to enable him to fit out the ship. (Bouvier's Law Dictionary, 6th Ed.)
The idea, evidently, was that the keel, or bottom, of the ship would serve as security for the loan. Very few lawyers today specialize in bottomry, or if they do, they don't advertise it.