The Lingua Franca
posted by Kaimipono D. Wenger
Coming to law school is sort of like learning another language; and for the most part, the vocabulary is clearly marked. No one really expects students to know the meaning of res ipsa loquitur means before law school, and so the professor will explain the concept. Ditto for expectation damages, or piercing the corporate veil, or other peculiar vocabulary terms.
However, underlying these explicit (and usually well-explained) new words is a minefield of other new words and ideas, many of which may be second-nature to the law professor — and so, which may never be explicitly defined or explained. These are words that students will be simply expected to know or understand. When students don’t know these words, it can cause no end of grief.
I still remember vivid law-student experiences of my own with three such words. I remember sitting through several very muddled days of 1L year because I had no idea what “prima facie” meant. The professor used the term constantly, and I could not figure out from context what it meant; unlike other terms, it was never really defined in class, and Black’s Law Dictionary was ^&* useless. Eventually, I fumbled my way to a half-definition, but I never did really pick up what the term meant during that class.
It wasn’t just prima facie, either. Embarrasingly, I discovered halfway through my 2L year that “conflate” was a real word, and not just a weird idiom used by my Civ Pro TA. And I wasn’t the only one who had these kinds of troubles — during my 3L year, I walked in on a conversation between two of the top law review editors who were debating whether “dispositive” was a real word or a professor-made-up word.
These words too often cause law students to trip up. And they’re often missed, because they’re not the hard legal terms like rule-against-perpetuities, but the other terms that make up the soup of legal discourse, an understanding of which is often assumed.
So, for our law student readers, let me offer a few quick definitions of some such terms (as I see them). I realize that my observation is very anecdotal, and I’ve surely missed some common landmines of this sort — feel free to suggest your own too-often-undefined (or -misunderstood) terms as well.
Dispositive means something that tends to resolve an issue (i.e., move it toward a disposition). So, an argument or a piece of evidence that is dispositive is one that tends to answer the question. Or, someone will say, this [evidence/argument/etc] is helpful, but _not_ dispositive — meaning, that it doesn’t really close the door.
Conflate means to combine two arguments or issues, typically not in a good way. Usually, it’s in the context of not answering one of them — when someone points out that a student is conflating two issues, it’s to say that the issues are distinct and need to be addressed distinctly.
Superfluous means excessive or extra (often regarding language, as in extra language not really needed to understand or apply a document). I use this term a lot when I teach, and every semester, it seems like I get someone asking what it means.
Alienate means to transfer property to someone else, via a sale, trust, whatever.
Real property = land, and Personal property = not land.
Okay, readers – what terms am I missing? Which ones confused you, your 1L year, until you fumbled your way to some muddled definition?
May 8, 2007 at 4:07 am
Posted in: Law School (Teaching)
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Responses (27)
anon - May 8, 2007 at 8:32 am
Lingua franca?
anon - May 8, 2007 at 9:13 am
I suppose it’s more a term of art than the examples you gave, but it’s one that, in my experience, professors don’t explain very well: equity/equitable.
The distinction between “legal claims” and “equitable claims” confused me almost until the day I graduated. “How can they not be ‘legal’ if we’re in court?”
Then, of course, there are all the latinisms. Not the maxims, but the quick throw-aways like a fortiori.
Cathy - May 8, 2007 at 9:45 am
Normative. Plenary. Especially plenary, since I still tend to forget what it means and how to use it…
anon - May 8, 2007 at 10:25 am
Prophylactic
Respondeat superior - May 8, 2007 at 10:27 am
I would have said dispositive. That is so true.
Professors often use philosophy words they assume everyone knows, like hypostasize and instantiate. They often classify their own perspectives to students lacking the depth of knowledge to understand it. One example is a professor of mine who called himself a “Hartian positivist”. If I hadn’t just taken a Jurisprudence class the prior semester, I would have had no idea what he meant.
The canons of construction are in Latin and hard to get right when they arise in cases unless you take a statutory construction or legislation class, which generally occurs post-1L.
debris - May 8, 2007 at 10:53 am
Conclusory
DB - May 8, 2007 at 11:10 am
Decedent=dead person
Matt - May 8, 2007 at 11:13 am
Prophylactic? That’s an old name for a condom, isn’t it?
arthur - May 8, 2007 at 11:15 am
“scienter”. I’ve been practicing in teh securities fraud for 15 years and still don’t get it.
Michael Led - May 8, 2007 at 11:18 am
Under Illinois law, little of what we file during motion practice is recognized as a pleading. This technicality tends to become an issue when we file an objection and/or motion to strike the motion of a weak opponent.
Michael Lee - May 8, 2007 at 11:18 am
Under Illinois law, little of what we file during motion practice is recognized as a pleading. This technicality tends to become an issue when we file an objection and/or motion to strike the motion of a weak opponent.
A Northwestern Law Student - May 8, 2007 at 12:17 pm
I’ve read your definition of dispositive three times, and I still don’t know whether we understand it the same way. Evidence that is dispositive doesn’t just “tend” to answer a question, it *does* answer the and resolve (dispose of) the issue. Maybe that’s what you meant.
I would also throw onto the list the distinctions between legal/jurisprudential/juristic/jural. And “cause of action,” which a lot of people conflate (!) with “action.” “Epistemological” gets thrown around a fair amount too.
Eric - May 8, 2007 at 12:45 pm
Oy veh. The lexicon of state court practice can really be a nightmare. Most of my practice experience was in Pennsylvania, where the rules of civil procedure seem to have been written by Charles Dickens as background material for Bleak House. The clerk is the “prothonotary”; a 12(b)(6)-type motion is a “preliminary objection”; and there’s something called a “praecipe for a rule to show cause”, the precise meaning of which still eludes me.
SC - May 8, 2007 at 2:53 pm
A couple that gave me fits for a while: prudential (as used in Con Law and a Fed Courts class) and doctrinal (as constantly used by my torts prof).
U of C - May 8, 2007 at 5:16 pm
Normative and descriptive (used as opposites)
All the economics jargon
humblelawstudent - May 8, 2007 at 6:25 pm
“Impracticable” It took me a year to realize the professor wasn’t actually saying “impractical”
nyu - May 8, 2007 at 8:24 pm
law of “accession” instead of “accretion”
AJ - May 9, 2007 at 11:27 am
A property prof of mine used to have some fun at the class’s expense by using the term “demised premises” and then asking students what they thought it meant. Students always guessed something like “uninhabitable,” when in fact it simply means “rented.”
(As an aside, it’s always irked me that MS Word doesn’t recognize the existence of the word “dispositive.”)
NE2d - May 9, 2007 at 12:22 pm
I am utterly baffled by “consideration.” “Outcome determinative” is almost as bad.
On a related note, “probate,” “probative,” and “probation” all mean seemingly completely different things. Are the concepts related in some way I don’t see?
Archit - May 9, 2007 at 3:40 pm
apposite
Jeff Lipshaw - May 9, 2007 at 4:21 pm
I like “constructive” myself. I teach that whenever you hear a law professor say “constructive” the next word is a lie.
Of course, that means that a constructive comment is not a helpful one, but one you didn’t make, and are deemed to have made anyway.
I scratched my head over the writ of trespass for a long time, particularly trespass on the case. As opposed to trespass quaere clausum fregit, which was always perfectly clear to me.
I hope this has been constructive.
Patrick S. O'Donnell - May 9, 2007 at 6:02 pm
I think many of the commenters here would enjoy Peter M. Tiersma’s Legal Language (1999), as well as much of the material at his webpage LANGUAGEandLAW.org: http://www.languageandlaw.org/
interested reader - May 10, 2007 at 2:31 am
I think the common element in “probate,” “probative,” and “probation” is the idea of proving something. “Probate” is designed to prove the the validity of wills, probative means “tending to prove,” and “probation” tests a person’s ability to change his or her conduct.
interested reader - May 10, 2007 at 2:32 am
I think the common element in “probate,” “probative,” and “probation” is the idea of proving something. “Probate” is designed to prove the the validity of wills, probative means “tending to prove,” and “probation” tests a person’s ability to change his or her conduct.
Nate Oman - May 10, 2007 at 7:53 am
I personally like the word “hypothecate,” which I try to use no only in my secured transactions class (which after all is mainly about hypothecation) but also at dinner parties, neighborhood BBQs, etc. Of course when I do, my wife generally gives me a hard elbow jab to the ribs.
Elizabeth Warren at HLS reputedly begins each semester of her contracts class by — literally before saying anything else — asking some poor 1L, “What is an assumpsit?”
Publius - May 10, 2007 at 12:55 pm
It’s “reckless and wanton” conduct, not “reckless and Won Ton” as one student memorably put it in 1L Torts.
Publius - May 10, 2007 at 12:59 pm
I’ve also always been fond of the pleading called a “Suggestion of Death”, and thought it would be a good title for my unpublished novel, but someone beat me to it.
http://www.amazon.com/Suggestion-Death-Marianne-Wesson/dp/0671035592
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