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.]

Distance Learning - All I Want is a Law Degree

Few industries are as slow to adopt new methods and technologies as the legal profession. Certainly, the stability provided by relying on tried and true technology is valuable in an industry that is largely risk averse, but this bias against new technologies sometimes seems arbitrary. This is why current activity in favor of law degrees through distance learning is encouraging.

Until recently, the American Bar Association's Standards for Approval of Law Schools prohibited accredited law schools from granting credit for correspondence courses except in very narrow circumstances. As an example, see the ABA's old position on distance learning, which included a statement that "a law school shall not grant credit for study by correspondence." The limitation was so severe that law students who needed to take a significant portion of their course work by correspondence were effectively barred from practicing law in the vast majority of states. The new rules permit accredited law schools to count substantial amounts of distance learning credits towards the minimum coursework requirement subject to meaningful oversight by the school, and further subject to additional qualifications described in the Standards. The rule change means that instead of a bias against distance learning, the ABA now recognizes distance learning as a legitimate means of obtaining a law degree when the shortcomings of education without in person interactions are addressed.

Only a handful of states permit graduates of all-correspondence law schools to take the bar exam, which is why I was surprised by the news of a recent court case in Massachusetts (among the states with the strictest bar admission rules). (Note that California is one of the states that permits graduates of non-accredited law schools to take the bar exam, subject to other requirements that do not apply to graduates of accredited law schools. Also, several states already have alternative review processes on an as-requested case-by-case basis even though they don't permit graduates of non-accredited schools to automatically take the bar exam.) The circumstances surrounding the case were covered in a recent edition of the California Bar Journal. A recent graduate of Los Angeles based Concord Law School, the first all-online law school, wanted to practice law in Massachusetts even though he knew the state did not permit graduates of distance learning schools from taking the bar exam. In spite of the rule, the student petitioned the state bar and initiated a court case seeking the right to take the exam. The law school graduate was such an effective advocate in representing himself through the briefs he filed and his oral arguments in the court case that the Massachusetts Supreme Court ruled he could take the exam.

The case indicates a shift in the legal profession's bias against distance learning to an acceptance that, under the right circumstances, distance learning can produce strong candidates for attorneys. In practical effect, while the case does not mean that distance learning will automatically be accepted as a substitute for traditional law school attendance, it does mean that more states will likely add alternative review criteria for distance learning candidates when determining whether they should be permitted to take the bar exam.

The trend towards distance learning in legal education is part of a larger trend in support of distance learning for virtually all professions. Among the primary objections to distance learning is the lack of personal interaction and the environment of school and students is seen as critical to making good lawyers. This type of criticism is not typically cited as a weakness of distance learning in other professions. It's true that many attorneys will go into areas of the profession that require excellent client interaction skills, but these types of skills are not necessarily learned in the classroom environment. In fact, one could argue that the distance learning model more closely matches the way most attorneys perform their jobs on a day-to-day basis. Consider my experience as in-house counsel at MySQL, where over 90% of the company's employees worked outside the Silicon Valley office where I worked. The bulk of my client interactions were more often through e-mail, telephone and occasional travel rather than direct personal interaction.

Distance learning also serves another important purpose. It allows those with valuable real-life experience in non-legal professions and endeavors to pursue a legal career. Take the case of a lieutenant colonol in the US Army who is taking law school courses while deployed in Afghanistan, which was described in a recent edition of the California Bar Journal. These types of students typically have day jobs and families and would not be able to pursue a law degree were it not for distance learning, yet the breadth and depth of their experiences is exactly what will allow them to make immediate valuable contributions to the legal profession ... certainly more quickly than I could have as a law graduate who attended law school immediately after graduating from college.

No doubt, the ability to have quality personal interaction skills is critical to success in virtually all professions, but these skills can be learned outside the classroom environment and they are exercised in different ways by each individual. As a result, it does not seem fair that distance learning law students should be at a significant disadvantage. This is one case where it appears that the legal profession is taking the right steps to move into the 21st century.