Legal Writing – Richmond Writing

Word of the Week! Usufruct

Hold onto your chairs. This word erupted on me during my reading of Thomas Jefferson’s letters and travel-diaries, written when he was in France. To James Madison, in a well known 1789 missive about the Constitution, Jefferson claims:

I set out on this ground, which I suppose to be self-evident, ‘that the earth belongs in usufruct to the living’: that the dead have neither powers nor rights over it.

You can find the letter in its entirety at The National Archives here. I’d never encountered our word before, so a bit of sleuthing can help me (and you) with this vital and hard-to-pronounce term. The OED is cranky today, not letting me in with my university account, but at least their fact sheet has some useful data: US pronunciation would be “YOO-zuh-fruhckt” and thanks to the non-paywalled Wikipedia, the meaning remains simple: “a usufruct is a system in which a person or group of persons uses the real property (often land) of another.”

I think that Jefferson sought to escape (Metaphor of the Month coming!) “the dead hand of the past,” as his new nation sought to remake itself as a Constitutional Republic. The document underpinning the Republic could and should be subject to change, as needs changed in the future.

Neither Madison nor Jefferson nor any of the Founders could do more than start a process, one never finished.

I suggest that in these times we all consider not only the word, still common in legal discourse, but also the concept as we enter uncertain times and the usufruct of our common nation remains an open question.

Please send useful words and metaphors to me at jessid -at- richmond -dot- edu or by leaving a comment below.

Image: Hamilton Fan-Art, Creative Commons License. Those rascals!

Word of the Week! Cavil

Professor J.P. Jones in our Law School nominated this word, in particular as a verb. Professor Jones notes that the verb appeared in a recent Economist article. Not a verb I use, it got me interested if for no other reason than to acquire a new action verb. I’m coming off a semester full of dull and boring “is/are/was/were” verbs of being by under-read students.

The OED gives us a succinct definition that any attorney might cherish, “to object, dispute, or find fault unfairly or without good reason.” The noun form means the same thing, a frivolous objection. Our word’s origin? Latin cavilla, where it meant a gibe or jeer.

No, we don’t ever encounter those today, now do we? Why has “cavil” fallen out of use, then? Here I have no good answer, only some hard and rather dispiriting facts.

The word has suffered a nigh-exponential decline in frequency of usage since the year 1750, falling from over 2.5 occurrences per million words to just over .006 per million. Curiously, cavil rebounded since 2017 and has enjoyed a minuscule revival to just over .009 per million. Still scarce, it appears to have made a comeback in educated circles.

I shall cling to it in an era of palpable stupid prose in once-respectable publications. Goodness, I’m Scrooge-like suddenly. Enough caviling.

The blog will continue in 2024 and I may sneak in one more holiday-themed post before lighting the Yule Log.

If you have a word or metaphor you enjoy, send them by e-mail (jessid -at- richmond -dot- edu) or leaving a comment below.

See all of our Metaphors of the Month here and Words of the Week here.

Image: random Googling for “Fake Outrage.”

Word of the Week! Fungible

Two mushrooms walk into a bar. The bartender shouts “Out with you! No plants allowed!”

One ‘shroom replies “Hey, I’m no plant! I’m a fungi!”

Okay, it’s not only a bad joke, but it should be “a fungus” (singular) for you botanical purists. In any case, I did just check and fungi are not considered plants.

When my colleague Professor Jack Molenkamp, Visiting Lecturer in Business Law and Adv Business Law in the Robins School of Business, requested our word, that old joke reared its fungible head. Yet why “fungible” for a bad joke?

In law or business, a fungible commodity can be exchanged for another without “breaking the terms of a contract,” as The OED patiently explains. We see this at rental-car agencies, when the Nissan Sentra you planned to rent gets replaced by a Toyota Corolla. Under the terms of the rental agreement, you get a compact car in return for the daily fee; no guarantee of color or model gets stated. If one reads the small print, it specifies that another make can be substituted. Thus, anything fungible can be broadly considered “interchangeable” or “replaceable.”

As Thanksgiving approaches, consider the self-inflicted plight of Neal Page, Steve Martin’s character from the brilliant Planes, Trains, and Automobiles. Trying without success to get home in time for Thanksgiving, Neal encounters one disaster after another, raging at a clerk that he just wants to get into a [expletive deleted] car. No dice for Neal. He should have read the contract that he threw away in anger; his car is gone from its parking spot but without the paperwork, the rental agency has no legal obligation to provide another fungible asset to replace the one for which he just paid.

Like Neal’s car, a fungible item, or side dishes offered with the entree (without an upcharge) at a restaurant, the subject of a “walk into a bar” joke can be exchanged infinitely for other subjects without changing the terms of the joke. Thus my favorite:

A three-legged dog walks into a saloon in the Old West and says “I’m lookin’ for the man who shot my paw.”

Okay, I’m done. My colleague did not need bad jokes, but he did need to tell me how greatly it puzzled him that his students did not know the meaning of “fungible.” I agree with him: anyone in business or law needs to understand the concept of fungibility.

As with “pagination” last time, I lay the blame on students not being serious-enough readers. You cannot acquire a strong vocabulary without reading. Sorry, students. Since few students read blogs, I again address my audience of faculty and staff. What are the key words in your field that an undergrad should know before getting a degree?

Why does the lack of reading among students (and peers!) irritate as much as, say, Neal’s situation in the rental car lot?

Nominate a word students need to learn by e-mailing me (jessid -at- richmond -dot- edu) or leaving a comment below.

See all of our Metaphors of the Month here and Words of the Week here.

Photo mashup by me. I prefer the Corolla’s grille and hue.

Word of the Week! Jurisprudence

I have a student taking a class on this topic, yet she remained unaware of the term’s precise meaning.

Being of no help until we consulted The OED, I decided that we had a new word for our blog. What I found at The OED entry surprises me. I’d guessed that the word serves the same purpose as “pedagogy” in my field: a theory of learning. In the case of jurisprudence, we have a theory of law.

That proved accurate, but one definition arose: skill with practicing law. That nuance gets at another worthwhile meaning, indicated by the same root that gives us “prudent,” or taking care, being careful.

Finally, our word can indicate a body of laws, something that relates it to the notion of legal precedent.

I hope this post assists my student bound for law school as much as I have enjoyed writing it!

Nominate a word by e-mailing me (jessid -at- richmond -dot- edu) or leaving a comment below.

See all of our Metaphors of the Month here and Words of the Week here.

Image of John Houseman from The Paper Chase.

Word of the Week! Postulate

I just used this word, as a verb, in class as I noted how we work with student writers. We first look for patterns of error, postulate why, then ask writers why they repeat a certain error. This method, pioneered by scholar and teacher David Bartholomae at Pittsburgh, goes by the name “error analysis.”

For once, I got a high-falutin’ term correct. The OED notes both verb and noun forms of our word. In my case, I hit the nail squarely: “posit or assume.” Many other definitions occur here, from ecclesiastical to legal. Mostly the word came up during my education in sciences or philosophy. To employ it sounds less partial than “question” and less puffy than “hypothesize.” That last word triggers a near-but-not-absolute pet peeve of mine against too many -ize words. That said, I prefer the verb “postulate” or even “hypothesize” to “suppose” (making a less precise claim) or “claim” (less certain of the outcome or reason).

These nuances make philologists get up in the morning.

As a noun, “postulate” has an interesting way of being at odds with itself, and this difficulty may come from the field of study employing it. Our term can mean both “An unfounded or disputable unproved assumption; a hypothesis, a stipulation, an unproven theory” or “A proposition or assumption taken to be self-evident or obvious; an axiom” (emphasis added). Oh my.

So tell me how your academic field uses this clever little word. While you are at it, I need your words and metaphors for this blog.

Send them to me by e-mail (jessid -at- richmond -dot- edu) or leaving a comment below.

See all of our Metaphors of the Month here and Words of the Week here.

Screen cap from Thomas Dolby’s definitive postulate about New-Wave Music, “She Blinded Me With Science.”

Word of the Week! Sedition

Okay now, this post my have something to do with politics, but I’m not about to accuse anyone of sedition or try to wrangle a working legal definition. I will report what The OED and US law say. You then can peruse and decide.

We are going to hear “sedition” a great deal in coming months, also “seditionist,” a word last employed regularly in the late 1860s. “Treason” may also crop up.

As always, the OED provides a first stop. The second definition there, listed as “now rare” may well give us pause, as it will likely be employed in investigating and prosecuting those involved in or encouraging the recent riot at the US Capitol: “A concerted movement to overthrow an established government; a revolt, rebellion, mutiny.” Add to that the second definition, “Conduct or language inciting to rebellion against the constituted authority in a state” and I think we are nearly done with what the term means.

As to its origin, look back to French, other Romance languages, and Latin. The word has a long-term life and, sadly, history of examples for good and ill (against tyrannies and governments we might admire).

Soon in popular discussion the word “treason” will also be bandied about. I had assumed that it differed from sedition in that it involved supporing a foreign enemy.

What’s the difference, in terms of definition? the sense from this official document in the House archives is that treason applies to someone who “owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason and shall suffer death, or shall be imprisoned not less than five years and fined under this title but not less than $10,000; and shall be incapable of holding any office under the United States.

“Seditious conspiracy” has a different explanation and set of penalties for two or more people who “conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof, they shall each be fined under this title or imprisoned not more than twenty years, or both.”

There we have it. A great deal of legal action is soon to hinge upon these definitions, as well as which words and actions encouraged violent action or knowingly delayed the “execution of law” in Washington and elsewhere. Learn more about a recent (and half-forgotten) sedition trial of white supremacists here.

These are indeed momentous times, and if you have words or metaphors worth exploring, send them to jessid -at- richmond -dot- edu.See all of our Metaphors of the Month here and Words of the Week here.

Alfred R. Wauld’s sketch of Confederate President Jefferson Davis imprisoned at Fort Monroe. Davis was charged with treason, not seditious conspriacy. Image courtesy of Wikipedia

Word of the Week: Infamy

This post will likely run a day after the 79th anniversary of the attack on Pearl Harbor; President Franklin Delano Roosevelt rightly claimed it “a date which will live in infamy.” Yet when was the last time you heard this word used in any context?

I hope we remember to pause on that day of infamy, reading FDR’s speech annually, but I also hope we add this word to our working vocabularies. FDR’s first draft read “a date which will live in world history,” but as a source at the National Archives explains, he inserted “infamy” when revising the typescript of what he’d dictated. How he produced something that profound, under so much pressure, should inspire us to do better amid the crisis we face in these comparatively easier times.

The meaning is plain: we understand “fame” being positive, so “infamy” and “infamous” are negative. The term’s origin is Latin and French, as the OED puts it. I suspect an origin far older than the 15th Century, though like many words discussed here, it’s less a matter of first use than of Gutenberg’s invention providing us with the means to check surviving texts.

One legal definition is new to me, of a “loss of all or certain of the rights of a citizen, consequent on conviction of certain crimes.” That seems reasonable enough for some infamous folk, once convicted by a jury of their (presumaby, not infamous) peers.

Send words and metaphors to jessid -at- richmond -dot- edu. See all of our Metaphors of the Month here and Words of the Week here.

image from Wikipedia: first moments of the first wave of Japanese carrier planes over Ford Island, Pearl Harbor

Words of the Week! de facto & de jure

Recently, I ran across this usage from a 2018 article in The Atlantic:

And like de jure segregation—when the government legally engineered ghettos into existence—de facto segregation continues to exacerbate wealth and racial inequality today.

I often use de facto, luckily in its correct sense as stated in the OED, “in fact, in reality, in actual existence, force, or possession, as a matter of fact.”

There’s a clear distinction in all of the terms referenced by the OED using the Latin preposition de.

For de jure, it is a case of something being “according to law.” My example will get this post banned in China, but the Chinese occupation of Tibet constitutes a de facto, but not a de jure, annexation of another nation. The same applies in Cyprus, where in 2005 I crossed a de facto border between north and south, seeing the UN blue helmets try to maintain a ceasefire between the Turkish and Greek populations. Closer to home, many executive orders by our Presidents constitute similar de facto, but not de jure, changes to how our government functions.

Look at the news: which recent events and social changes are likely to become de facto, but not de jure, parts of our daily lives in the near future?

Maybe you have some words or metaphors that puzzle you? E-mail jessid-at-richmond-dot-edu with your nominees. See all of our Metaphors of the Month here and Words of the Week here.

image courtesy of Wikipedia Commons en Español. Hay que practicarlo.

Word of the Week! Abjure

Linda Hobgood, Director of UR’s Speech Center, ran across this term recently and nominated it. And why am I using a scene from Peter Jackson’s film? Wait for it.

It has a legal sound, to my untrained ear. But that is merely one definition given by the OED. In fact, the term generally means to renounce. In the obsolete legal sense, it meant to leave a place, rather akin to renouncing one’s citizenship in the era before passports. Most all senses of the word are historical or obsolete, yet the word has a formal sensibility that merits its continuance.

One usage does remain current, for breaking an oath. In J.R.R. Tolkien’s history of Middle Earth, I first learned the term “oathbreaker,” back when I was a teen. These poor fellows vowed to defend a kingdom against evil, and yet abjured their vows. They were cursed to become the living dead, until another king would call upon them to fulfill their oaths.

That’s rough justice. As for our word?

Let’s abjure abjuring abjure, and bring it back into our formal use.

Image of Aragorn calling upon the Oathbreakers of Middle Earth, courtesy of The Lord of the Ring Wiki.

Word of the Week! Moot

I find it odd that I’ve not covered “moot” before. Perhaps my interest skews toward the Latinate. This short term just drips with the mists of the Celtic fringe of Northern Europe.

So, it’s not a moot point: where did it come from? Northern Europe, yes, but not Celtic languages. Origins of the word go to Germany and Scandinavia, all with a sense of a meeting. Remember “Ent Moot” in Tolkien’s The Two Towers? Yet that is a real meeting. Noting “mock” about it.

So how did our word take on its modern sense of a “moot court”?

Moot can also mean a tree-stump , something our Oxford Don would have certainly considered in choosing his term for a meeting of talking, walking trees. Some noun usages mean merely “an argument” rather than the place where it occurs. Only when we get to moot as an adjective, meaning “having no practical significance or relevance; abstract, academic” or “unable to be resolved,” do we get our familiar meaning. Points in court were declared “moot,” and I have idea how the very word for the gathering became the word for a non-desirable outcome.

Bryan Garner’s excellent A Dictionary of Modern American Usage holds that “this shift in meaning occurred about 1900” (436). He says not why.

The reasons for that shift are not moot points. It would be worth more research to discover why.

Please send us words and metaphors useful in academic writing by e-mailing me (jessid -at- richmond -dot- edu) or leaving a comment below.

See all of our Metaphors of the Month here and Words of the Week here.

Belgrade Moot Court, courtesy of Wikipedia.

References:

Garner, Bryan A. A Dictionary of Modern American Usage. Oxford: Oxford UP, 1998.