Word Play

Judge Learned Hand, among the most celebrated American jurists, once wrote, "The language of law must not be foreign to the ears of those who are to obey it." Yet, law is very complex. Lawyers are in a never ending quest to express complex thoughts in as simple a way as possible. Words are a lawyer's tools of the trade. Some of the commonly used words are descriptive, some are fanciful, some are latin, and some are beyond explanation.

Here is a short selection of legal terms I have always found interesting -- not necessarily because of their legal import, but sometimes just because I like the way they sound. Also, please take the survey on the right and tell me which of the words on my list is your favorite, and leave a comment if you have others you would like to share.

Caveat Emptor
Meaning: Buyer beware.
Interest Factor: This deserves to be on the list if for no other reason than it played in prominent role in a Brady Bunch episode, no doubt inspiring an entire generation of children to choose a career in law. Aside from the pop culture reference, it is good advice.

Clawback
Meaning: A provision in a financial arrangement that enables the recovery of prior payments. (Clawback is more appropriately categorized as a financial term, but it is directly related to legal documents.)
Interest Factor: Much of the discussion on our current financial crisis revolves around clawbacks on executive compensation, particularly for executives from failed companies or companies receiving government subsidies.

Cramdown
Meaning: A bankruptcy term describing a situation in which a court imposes an involuntary reorganization plan at the expense of some classes of creditors.
Interest Factor: This term immediately caught my attention in bankruptcy class in law school. Not only is it perfectly descriptive of what happens in bankruptcy, I also always though it would make a great name for a rock band.

Disparate Impact
Meaning: A theory of liability in employment discrimination cases that relies on a showing that a protected class of people is wrongly treated differently even though employment policies are applied equally.
Interest Factor: News reports on Judge Sonia Sotomayor, President Obama's Supreme Court nominee, frequently include references to her role in a ruling by a panel of Second Circuit Judges in Ricci v. DeStefano, a case concerning whether a test for hiring firefighters in New Haven, Connecticut had a disparate impact on minorities.

Expressio unius est exclusio alterius
Meaning: The expression of one thing is the exclusion of another.
Interest Factor: This latin phrase is one of the foundational elements of logical thought and has applications well beyond the law. When interpreting contracts, it stands for the important principle that parties agreeing to include a list of items are presumed to have intended to include only those items, and other items must not be inferred. Applying this in a broader context, the more detail one provides, the more exclusive the description. Simple, powerful and true.

Jus Cogens
Meaning: A fundamental principle of international law accepted as a norm. Genocide and slavery are common examples.
Interest Factor: I will always remember the distinctive German accent in which I first heard this term spoken ("juice kookens") . A guest German law lecturer introduced this legal concept to our international law class in law school. While this term is valuable in its recognition that certain principles are almost universally recognized as boundaries of conduct, care should be taken to ensure the term is not mistakenly applied so broadly that it interfere with legitimate discussion and dissent.

Res Ipsa Loquitur
Meaning: A thing that speaks for itself, often abbreviated as "RIL".
Interest Factor: Along with "expressio unius...," this is one of the classic latin terms used in legal writing. The term is most often seen in the context of tort law when the cause of an injury is apparent on its face, but direct evidence is difficult to find.

How does this tie into open source? It doesn't ... at least not directly. However, it is interesting to note that many of the most popular open source licenses avoid the use of traditional legal terms and virtually all avoid latin terms. This is likely due to the fact that developers rather than lawyers wrote the first comprehensive free software licenses (like GPL).

This is just a small sampling of the wonderful world of legal terminology. Please share your favorites!

[Note, the "meanings" above are drawn primarily from the Nolo Press legal glossary, the Law.com dictionary, the FindLaw legal dictionary, the free legal dictionary, and Wikipedia.]