Southeast Texas Record

Thursday, February 27, 2020

Legally Speaking: Where legal phrases come from

By John G. Browning | May 1, 2012

Even if you are not a lawyer, you've no doubt heard plenty of words and phrases related to the law and the legal profession, such as "shyster," "third degree," "hearsay," "rap sheet," or "boilerplate." But did you ever wonder where they came from?

If so, then the book "Lawtalk: The Unknown Stories Behind Familiar Legal Expressions" (Yale University Press 2011) is for you. Written by my SMU Law School colleague Elizabeth Thornburg along with James Clapp, Marc Galanter and Fred Shapiro, "Lawtalk" is an entertaining, painstakingly researched book that reveals the hidden stories behind expressions that we now take for granted.

In many instances, the source may surprise you—the words and expressions discussed in the book trace their origins back not just to the early days of the legal system, but to sources like Shakespeare, vaudeville entertainers and even Dr. Seuss.

Professor Thornburg and her co-authors (who include a fellow law professor, a law librarian and a legal lexicographer) use the stories behind the 77 legal expressions covered in the book to illustrate what language itself can tell us about the law.

"Law pervades U.S. society, and the words and metaphors we use to talk about law give us powerful clues about our values and what's important to Americans as a people," Thornburg says. "Tracing where legal language comes from can also highlight the impact of history, good and bad, on today's law."

The histories of these expressions might surprise you. Take the phrase "kangaroo court" (a one-sided trial or tribunal that makes a mockery of justice), for example. You might think it originated in Australia, but in fact, it traces its roots back to Texas.

Tracing the term's earliest appearances in newspapers and later in the oral histories of old-time Texas range hands, Thornburg and company reveal how the phrase came to be associated with loosely run, ad hoc proceedings held by cowboys to enforce the rules of their camp or to haze newcomers, and later with prisoner-run "courts" in jails.

How about another word often associated with Texas and the Old West—"posse." The term we use for a group of upstanding citizens helping to maintain law and order in virtually every Western ever made actually comes to us courtesy of Latin, French and Anglo-Saxon roots.

In Anglo-Saxon England, able-bodied men were obligated to come to the defense of the shire under the leadership of the sheriff. After the Norman Conquest, shires were referred to by the French word "countee" (the domain of a count), which eventually became "county."

Assembling the manpower involved the "posse comitatus" (the Latin phrase referring to "those able from the county."). The phrase was shortened to simply "posse" to refer to those raised by a county sheriff or a marshal to combat the bad guys.

Another word examined by Professor Thornburg and company is "boilerplate," the term associated with the formulaic language found in legal documents like contracts, insurance policies and wills that is "standardized, used over and over, and often inserted in larger documents without careful review."

"Boilerplate" actually began with real boilers for steam engines, or rather the making of standard-sized plates of rolled metal that could be used for making steam boilers, as well as everything from bridges to battleships.

Soon, the phrase began to be applied to the metal plates of nineteenth century news syndicates, on which were inscribed prewritten stories that could be inserted as needed to supplement local news. Since these sheets reminded people of the plates for making boilers, they began to be called "boilerplates." Eventually, the term was extended to refer to any preset, unvarying text, and it later became a legal metaphor.

How about the phrase "read the riot act?" From misbehaving children to troubled employees, one can "read the riot act"—i.e., issue a stern warning that continued misconduct won't be tolerated—to just about anyone. But did you know that it stems from a real law?

In 1715, Parliament (concerned by possible acts of rebellion by supporters of the Stuarts' claim to the English throne) passed "An Act for preventing Tumults and riotous Assemblies, and for the more speedy and effectual punishing the Rioters"—in short, the Riot Act.

While the act provided for a punishment that was extreme (death), it also stated that no rioter could be prosecuted unless he or she had stayed on the scene for more than an hour after being read the warnings contained in the act itself. Ever since, the term has referred to the act of giving a stern warning followed by serious consequences if the warning is not heeded.

One of the more modern phrases, "affirmative action," refers to the efforts meant to end racial inequality. But did you know an African-American, and a Texan at that, coined the term?

Even before the landmark Civil Rights Act of 1964, one of the earlier efforts at taking positive steps to overcome centuries of discrimination was President John F. Kennedy's 1961 Executive Order No. 10925.

The order mandated that government contractors must "take affirmative action to ensure that applicants are employed . . . without regard to their race, creed, color, or national origin."

A lawyer named Hobart Taylor Jr., son of a black Houston businessman, was involved in the drafting of this order. As Taylor would later recall, "I was torn between the words 'positive action' and the words 'affirmative action'. . . . And I took 'affirmative action' because it was alliterative."

Taylor later served as a member of President Lyndon Johnson's White House staff.

Some of the stories behind the words and phrases explored by Professor Thornburg and her co-authors are surprising or debunk popular myths. Others are humorous. But all of them are insightful, and together they take threads from history, culture, law and linguistics and weave a quilt that is as entertaining as it is enlightening.

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