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Legalese

legal phrase 2

An assortment of legal dictionaries from our collection – photo by the author

Looking for a good legal dictionary?

Well the Law Library has over 4200 of them, covering countries and languages from Chinese to Estonian to Cameroon.  Many of these titles contain more than one language.  So you could even draft your motion, translate it to French, and then from French to Portuguese, if you were so inclined.

Partial to Black’s Law Dictionary?  Our collection contains multiple copies of 20 editions of the seminal title when you consider abridged and pocket versions.

But rather than engaging in a dry discussion on dictionaries or randomly choosing phrases from various titles to examine, we thought it would be more interesting to survey people in the Law Library of Congress and find out what their favorite legal terms or phrases are and why.  The answers were as engaging and varied as our staff.  Below, find some of the responses we received.

Starting with yours truly, we have recreational litigation. It’s been my favorite since I first read it in 1984, in a case (Beachboard v U.S., 727 F.2d 1092 (1984)) where the judge points out that the appellant paid more than double in filing fees to appeal the decision than the amount of the original judgment against him. The opinion is cited in about a dozen cases involving frivolous lawsuits. The rather colorful and melodious phrase has been stuck in my head for 30 years now and occasionally pops up at the oddest times.

As does per stirpes–a phrase I read a million times in my prior position at an estate planning law firm.  In their wills and trusts, our clients almost always divided their wealth per stirpes–or, “by the branch,” so that each child, together with any family, received an equal share–instead of per capita–or “by the head,” where every individual beneficiary would receive an equal share.  It was a term we used daily, even when chatting casually with clients, as in: “Good afternoon Mr. Smith.  How are Mrs. Smith and all the little stirpes?”

Other staff members cited a host of Latin, English, French, and even Māori terms.

In the Latin category we have the following:

Andrew, for obvious reasons, immediately claimed in custodia legis–a nod to both the name of our blog and the title of his (and our) first post.

Theresa Papademetriou offered another Latin phrase:

Proprio motu: from Latin, on one’s own volition, or initiative.  Article 15 (1) of the Rome Statute which established the International Criminal Court provides the Prosecutor of the ICC with unlimited authority to initiate the Court’s jurisdiction proprio motu, to investigate crimes which fall within the jurisdiction of the ICC. International Criminal Court, Rome Statute, entered into force on July 1, 2002.

Jeanine wrote, “One of my favorite legal terms is Amicus Curiae. It literally translates to ‘friend of the court.’ An amicus curiae is not a party to a case but one who has a strong interest, view or opinion on the subject of a case.”

Both Jim Martin and Shameema Rahman prefer res ipsa loquitur.  Jim because the “phrase just rolls off the tongue.  Very useful in the law of negligence.”

Shameema went into more depth:

res ipsa loquitur (Latin phrase)
Meaning: The thing speaks for itself;
Application: Negligent tort actions, when the defendant has full control over the situation;
Supreme Court Ruling: In Johnson v. United States, 333 US 46 (1948), the United States Supreme Court ruled that res ipsa loquitur applied in Jesionowski v. Boston & Maine R. Co., mean[ing] that “the facts of the occurrence warrant the inference of negligence, not that they compel such an inference.”
The reason why I like it: I believe we have full control over what we say to others. I know a plaintiff may win in a tort action for defamatory statements. However, I am still waiting to see the application of ‘res ipsa loquitur’ in favor of a plaintiff for using hurtful words in a tort action.  I first heard it in my first year law school tort class, in 1986.

I had to laugh at Donna’s submission:

In loco parentis [in place of parents]. When I see this term, I see not the Latin word for “place” but the Spanish word for “crazy,” as in “parents make you crazy” or “in parenthood, craziness.” I think of this term whenever my four year-old complains about having parents instead of robots to raise him. (Robots, apparently, allow ice cream to be a main dinner course and don’t enforce rules!)

Two French terms made the list:

Janice Hyde stated that: “My favorite legal term is ‘estoppel.’ I love the sound of it and the fact that (according to Wikipedia) ‘The noun form ‘estoppel’ is based on the Old French estoupail, which meant a stopper plug.'”

While Jacinda Gill likes force majeure. She says, “Heard of this on one of my favorite movies – Cape Fear.”

Kelly highlighted an interesting legal term that is contained in a number of New Zealand statutes and court decisions: taonga. As she explains it:

This Māori word has actually made its way into English dictionaries, where it is defined as “treasure” or “anything highly prized.” A definition is also included in a dictionary of Māori legal terms published in 2013. Examples of its use in statutes include the Māori Language Act 1987, which states in the preamble: “Whereas in the Treaty of Waitangi the Crown confirmed and guaranteed to the Māori people, among other things, all their taonga: And whereas the Māori language is one such taonga.” The Resource Management Act 1991 states as a matter of national importance “the relationship of Maori and their culture and traditions with their ancestral lands, water, sites, waahi tapu, and other taonga.” The National Library of New Zealand (Te Puna Mātauranga o Aotearoa) Act 2003 also includes the term in its purpose section: “The purpose of this Act is to provide for the preservation, protection, development, and accessibility, as appropriate, for all the people of New Zealand, of the collections of the National Library (which includes the Alexander Turnbull Library) in a manner consistent with their status as documentary heritage and taonga . . .”

As for English terms, we have the following:

First, Eduardo Soares and Jennifer had similar ideas.

Eduardo said he would go with the famous “Miranda Warning,” or “Miranda Rule” arising out of Miranda vs. Arizona, 384 U.S. 436 (1966), a version of which he quoted:  “You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided for you. Do you understand the rights I have just read to you? With these rights in mind, do you wish to speak to me?”

Those of you fortunate enough to have seen our Magna Carta: Muse & Mentor exhibit may recall that we displayed draft notes from Chief Justice Warren’s decision in the Miranda case.

Jennifer’s take on Miranda involved a personal aspect which I think would make a great blog post (hint to Jennifer):

Mirandize. Black’s Legal Dictionary classifies the term as slang, but they do define it: “to read or recite (to an arrestee) rights under the Miranda rule <the suspect was arrested, Mirandized, and interrogated>.” When my U.S. history class studied Miranda v. Arizona 384 U.S. 436, I asked my dad, who started his law enforcement career just prior to the Miranda decision, for his memories about it. It was an interesting personal history lesson.

Deborah Kitchin wrote:

Well-founded fear is the legal term that I consider my favorite, from hearing it often during the 9 years (2002-2011) I was a contractor at the internal library of Refugee, Asylum, and International Operations Directorate (RAIO), part of U.S. Citizenship and Immigration Services. Refugee and asylum officers needed specific information on country conditions as they researched their cases, and the RAIO library was under a congressional mandate to provide it. The term comes from the formal definition of a refugee, as developed by the United Nations, “…owing to a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion.” There was also a documentary film with the same title, that was produced in 2000, which we viewed to gain a deeper understanding of the asylum-seeking process.

Alex LoBianco told me that his favorite phrase was What was used to be a shield will not be used as a sword. “I heard it once used by an attorney news commentator. Its my understanding its a classic legal phrase.”

Doing a little research on my own, it seems to come from an English contracts case Combe v Combe [1951] 2 KB 215 dealing with promissory estoppel.  The case is too old to have been digitized yet, so I include here, with apologies, a page from Wikipedia.

Like me, Brandon Fitzgerald had trouble choosing just one, so he submitted both a phrase still in use today and an obsolete term:

The Laughing Heir
This is certainly an amusing legal term that describes a rightful heir who is so distant from the deceased that they would not feel bereaved in any way. In some cases, an heir can be too remote to legally inherit and the estate would be forfeited to the state.

Common Scold
I’m interested in the treatment of women in legal history, and this is a classic example relating to public nuisance laws in England and later in the American colonies. Excessive quarreling (a crime that evidently could only be committed by women) was punishable by “ducking” and remained on the law books in England and Wales until 1967.

Jennifer Gonzalez came up with another now-obsolete entry:  “Oredelf is an old term that means the rights to dig on one’s own land, for minerals particularly and has stuck with me since law school. It sounds to me like a Lord of the Rings character, so I think that is why it stuck with me for all of these years.”  She has since found a definition in A Dictionary of English Law by W.J. Byrne.

And finally Robert Brammer gives us this archaic gem:  “Pettifogger. I think I first came across it in an 19th century newspaper. It is a noun that describes an unscrupulous lawyer who files petty cases, argues trivial issues, and engages in dilatory tactics.”

So, did your favorite legal term make our list?

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