California Lawyer


The Unknown Stories Behind Familiar Legal Expressions

August 2012

Yale University Press, 348 pages, hardcover




As a "rule of thumb," the outlaw and his "posse" always passed through town "with all deliberate speed." They had no interest in visiting a small-town "kangaroo court" where the sheriff was likely to "give them the third degree," "read them the riot act," or extract "a pound of flesh."

The paragraph above uses just a few of the phrases examined in Lawtalk, an anthology of the history, meaning, and use of well-known legal lingo. This collaborative effort is a witty, informative collection of historical anecdotes tracking the linguistic and cultural origins of legal expressions used in day-to-day conversation.

The contributions of James E. Clapp, a former litigator turned legal lexicographer, are chock full of well-documented nuggets of information that trace the etymology of legal idioms and metaphors. Examples include rule of thumb (whose original meaning has surprisingly sinister significance) and black letter law, the meaning of which has shifted dramatically during its centuries of use from "ancient law of doubtful validity" to "established principles of modern law." (Its literal origin was the English name of the typeface in which books were first printed, in contrast to Roman text, sometimes referred to as "white letter.")

Clapp examines the historical evolution of redundancies found in legal expressions deriving from Latin, French, and English - among them aid and abet, hue and cry, null and void, fit and proper, due and owing, and cease and desist - concluding that in "this day and age" listing every redundancy in the English language would go on "forever and ever."

Elizabeth G. Thornburg, a scholar in the area of legal metaphors and a law professor at Southern Methodist University, examines oft-used phrases such as deep pocket and a pound of flesh. She reveals that the ancient term an eye for eye first appeared in the Code of Hammurabi, the sixth king of Babylon who reigned in the 18th century B.C. There it stated, "If a man has destroyed the eye of a free man, his own eye shall be destroyed."

Thornburg also introduces the concept of "backronyms" (a reverse acronym, i.e., the creation of an acronym from an existing word). For example, rap sheet, despite its common usage (e.g., bum rap), has since acquired the status of acronym for "record of arrest and prosecution."

In a refreshingly candid manner, Lawtalk explores race, gender, and class issues associated with the evolution of commonly used phrases: affirmative action, badge of slavery, color-blind, Jim Crow, one person, one vote, play the race card, separate but equal, three-fifths rule, and white shoe.

Although each entry is brief (at two to five pages), Lawtalk meticulously documents its references, providing an index of notes detailing sources for each. Marc Galanter, a professor emeritus at the University of Madison-Wisconsin and author of Lowering the Bar: Lawyer Jokes and Legal Culture, contributes jokes and other sidebars. Yale Law School librarian Fred R. Shapiro collected most of the illustrations that appear in the book and coordinated the project.

Amusing, enlightening, and authoritative, this well-researched mini-reference is something readers will return to repeatedly.

Danielle Ochs-Tillotson is a shareholder in the San Francisco office of Ogletree, Deakins, Nash, Smoak & Stewart.

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