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The Legal Historian's False Friends:

Language teachers talk about translators' "false friends" -- words in a foreign language that sound familiar, but are quite different. The classic example is the Spanish "embarazada," which does not mean embarrassed. Likewise, the Russian "magazin" means a shop, not a magazine (the latter translates as "zhoornal," cognate to journal).

I'm looking for examples of the legal historian's false friends -- terms (mostly English terms) that might sound familiar to a law student doing legal research today, but really mean something different from what the student would at first expect.

I've seen this, for instance, in my Second Amendment work. "Militia," for instance, pretty clearly meant something like "the armed able-bodied citizenry" (limiting citizens to first-class citizens of the time, and excluding blacks, Indians, and women) rather than "National-Guard-like force" or "small military band," which is what many people tend to think of when they hear "militia" today. Likewise, "free State" meant not "state independent of the federal government" but something like "democracy, republic, or constitutional monarchy" as opposed to a despotism. Neither of these terms have entirely lost the old meaning; but they have acquired enough of a modern meaning that the modern meaning may lead modern readers astray. Dean William Treanor points to another example, here of a change in grammatical convention:

Justice Thomas, Professor Amar, and others have assigned critical interpretive weight to the fact that, to quote Justice Thomas, "[i]n the Constitution, after all, 'the United States' is consistently a plural noun." This grammar would appear to suggest, as Justice Thomas and Amar have concluded, that the Constitution, as initially adopted, reflected the view that the United States was a collection of states, rather than one nation. What this reading misses, however, is the fact that, in the late eighteenth century nouns ending in "s" were commonly assigned plural verbs, regardless of whether the noun itself was plural or not, a rule gradually displaced as the nineteenth century progressed. It is true that "United States" was often matched with a plural verb in 1787 and consistently matched with a singular verb after the Civil War. But one cannot conclude simply from this change in grammatical practice that the dominant political theory changed, since the same verb shift occurred for the word "news," and there was no reconceptualization of "news."

(I can't personally vouch for the accuracy of this argument, but my sense is that Dean Treanor enjoys a very good reputation as a historian; and, more broadly, this is an example of the sort of thing I'm looking for, even if some might disagree with Dean Treanor's particular argument.)

Any suggestions? Please pass them along.

American Psikhushka (mail) (www):
Something tells me that an "opportunity to be heard" in certain settings means a lot more than someone physically being able to hear someone else.
6.15.2007 8:32am
Nathan_M (mail):
In high school I took a trip with my Spanish class to Costa Rica. My friend did something silly, I can't remember what, and told her host family about it. In her broken grade 11 Spanish, she told them she was was "muy embarassa". Her hosts, being good Catholics, were furious, and she couldn't figure out what had happened.
6.15.2007 8:42am
EvanH:
Inflammable means flammable! What a country.

Seriously, I'm always surprised when law students misuse enjoin.
6.15.2007 9:13am
Nellie:
The word "abortion" is such an example. Historically, this was the medical term for what laymen call a "miscarriage." Induced abortions were called "therapeutic abortions" if performed for medical indications. The term "elective abortion" came into use medically after such procedures were legalized in New York.

But now the unmodifed term "abortion" seems to mean "induced abortion," and no longer includes spontaneous abortion. Those of us educated years ago have endured some vicious verbal attacks when we forget how the usage has changed, at least among the general public.
6.15.2007 9:19am
Ben Snitkoff:
I think more to the point on plurals, it's english convnention to assign plural verbs to any group noun, especially companies.

If anyone has ever seen Top Gear, the hosts are constantly saying things like "Porsche have." So, while I always took the Constitution to mean "united States" (if I recall, that's even the correct capitialization), they very well could have meant "United States" and just been using the, then, proper verb conjugation.

Also, the linguistics term for "false friends" is a "false congnate." A great one in German is "brav." It means good, as in bravo (yet another word the Germans took from the french), but Americans in Germany regularlly talk about how good they were when the recused maidens from castles and when a German is in America isn't unusual to see them talking about how brave they did on a test.
6.15.2007 9:38am
corneille1640 (mail):
Dear EvanH:

I confess to being a bit confused by the word "enjoin." My understanding is that it can mean BOTH "to order someone to do something" and "to forbid someone from doing something." In most of the cases I have read, however, it usually has only the second meaning. I am not a law student or lawyer myself, but I'm curious if anyone can enlighten mean.
6.15.2007 9:43am
corneille1640 (mail):
Correction: I meant: "...I'm curious if anyone can enlighten me."
6.15.2007 9:43am
martinned (mail) (www):
L.S.,

The Russian magazin is just French (magasin), but it is a pretty good example of a false friend. (Just like the Spanish librería/biblioteca fiasco.)

In legal history, thinking about it in this way inevitably leads one to a discussion about legal doctrines and concepts that have changed significantly over time. That's why the example from professor Treanor is a much better example of how a false friend can get in the way of legal research than the militia example.
6.15.2007 9:45am
JR (mail) (www):
During my first semester of law school I read a case that mentioned the plaintiff's prayer. This was a bit confusing to me. I knew that it wasn't a religious reference from the context, but I didn't know its exact legal meaning until I looked it up in a legal dictionary. I thought maybe the judge was trying to be cute with his words.
6.15.2007 9:49am
Respondent (mail):
I'm not sure of the historical origin of each meaning, but the British use "table" to introduce legislation, and Americans use "table" to kill it.
6.15.2007 9:53am
corneille1640 (mail):
Dear Respondent:

Just out of curiosity, would you happen to know if the British or US usage of "table" is current in tehe Canadian legislature?
6.15.2007 10:00am
EvanH:
corneille1640, enjoin does in fact mean both to order and to forbid. Believe it or not, I frequently see it misused as a form of join.
6.15.2007 10:04am
Curt Fischer:
From OED's entry for enjoin:


1. trans. To join together. Obs.
1382 WYCLIF Matt. xix. 6 Therfore a man departe nat that thing that God enioynyde, or knytte to gidre. 1393 LANGLAND P. Pl. C. XI. 130 With wynd and water wittyliche en-ioyned. 1502 Ord. Crysten Men V. ii. (1506) 366 To enioyne hete and colde in one selfe torment. 1559 Homilies I. Adultery II, Through whoredome to be enjoyned [1547 joined] and made all one with a whore. c1600 NORDEN Cornwall in Johns Week Lizard (1848) 224 The forces of manie strong men enjoyned can doe no more in moving it. 1684 CHARNOCK Wks. (1864) I. 115 A reflection upon what God hath done should be enjoined with our desires of what we would have God to do for us.
[other definitions meaning to forbid or to command follow]


Even though this definition is marked in the OED as "obsolete", I have a hard time calling the use of "enjoin" to mean "join" an error.
6.15.2007 10:14am
SeaDrive:
In his novel "Doctor Frigo", Eric Ambler makes cute use of the fact that the Spanish word used for congestion (i.e. nasal congestion) is a cognate for constipation.

And I recently heard a major political figure (Chris Dodd?) tell a story on himself centered on assuming the Spanish word for embarassed would be a cognate.

In legal text, I'm often confused by words with the "ee" ending. Payee is familiar enough, but who is the alienee?
6.15.2007 10:22am
dearieme:
Seadrive, why do people say "attendee" when they mean "attender"?
6.15.2007 10:29am
Milhouse (www):
Ben Snitkoff:
Also, the linguistics term for "false friends" is a "false congnate."
No, a false cognate is the opposite of a false friend; it's a word that means exactly what you think it means, or something uncannily similar, so that you think they must be cognates, but in fact it has a completely different etymology. Words like "kahuna" (priest) in Hawaiian and "kehuna" (priesthood) in Hebrew. Or, within English itself, "trawl" (to fish by dragging a net) and "troll" (to fish by trailing a line); look it up yourself, or you won't believe that they're not related. Same for "pen" and "pencil"; they're both from Latin, but from completely different words.
6.15.2007 10:32am
Zathras (mail):
Not quite completely different, but the legal usage of "subjective" and "objective" is quite a bit different than the philosophical usage of the terms. This caused me some trouble in the first months of law school.
6.15.2007 10:34am
byomtov (mail):
Are "magazine" and "magazin" (and the French "magasin") really false friends? Don't they all have a common meaning as a storage place, which has evolved into shops, warehouses, arms depots, etc., as well as publications that contain a variety of articles?

My American Heritage Dictionary gives the origin as the Arabic mahazin, the plural of mahzan, from hazana: to store.
6.15.2007 10:53am
EvanH:
Curt, thanks for that information.
6.15.2007 10:56am
Alison N:
The covenant of "quiet enjoyment" in property law has little to do with the volume level or entertainment factor of property.
6.15.2007 10:56am
Stephen C. Carlson (www):
Not quite completely different, but the legal usage of "subjective" and "objective" is quite a bit different than the philosophical usage of the terms.


Fascinating. Not being familiar as I would like to be with the philosophical use, could you expand this a bit more?
6.15.2007 10:56am
Dave N (mail):
"Niggardly"--A perfectly good word--but which has fallen from disuse because of its simililarity (though no common linguistic roots) to a word that may NEVER be said.
6.15.2007 10:59am
gary (mail):
Drifting a bit, older reported opinions of the Michigan Supreme Court have a 'quaint' and apparently random practice of the dissenting opinion appearing first in the decision, before the majority opinion. Discovered this to my horror upon returning to the office and figuring out that both of the attorneys and the judge failed to pick this up and cited the dissent as the majority. The judge never did rule on my motion for reconsideration.
6.15.2007 11:08am
just me:
For legal false friends, akin to the changed unerstanding of ""militia":

1. malice - to mean reckless disregard for truth as opposed to ill will

2. republican form of government - many lawyers and non-lawyers alike understand that small-d-democratic has a meaning separate from Democratic Party policy, but have no idea that small-r-republican is even a word, let alone a critical concept. Indeed, many of the concepts that I consider truly "republican," in the sense that government is limited, such as free speech, are now called "democratic" values, even though the whole idea is precisely ANTI-democratic.
6.15.2007 11:09am
K Parker (mail):
re: enjoin

Kind of like sanction, eh?
6.15.2007 11:21am
RJL (mail):
There is nothing funny about "comity."
6.15.2007 11:26am
Just an Observer:
Do you mean to include terms of art such as "reasonable expectation of privacy?" Prof. Kerr is forever reminding folks that this term of art, in the context of the Fourth Amendment, does not mean what many reasonable laymen might expect.

Surely there are lots of such legitimate examples.

Also, even though the matter is still under litigation and subject to change, we are given to understand by our government that "enemy combatant" actually can mean financial computer hacker and/or identity thief, as well as [...] .

Don't even get people started on "war on terror," which also is a work in progress, lexicographically speaking.
6.15.2007 11:36am
Dave N (mail):
"Prosecute" means to pursue a case--thus and is not limited to criminal law.

While "lawyer" and "attorney" are synoyms, their roots are completely different. A "lawyer" is a person trained in the law and authorized to appwar in court.

"Attorney," on the other hand, is a person authorized to act on someone's behalf--whether in court or elsewhere.

Thus someone who holds a Power of Attorney is an Attorney-in-Fact--and may not be a lawyer at all.

Because of this, "Attorney at Law" is not redundant.
6.15.2007 11:36am
Poor Richard:
Freedom of "the press", which originally meant freedom of anyone to print statements in addition to the freedom to make statements orally (freedom of "speech")--akin to the distinction between libel (printed defamation) and slader (spoken defamation). Is now often understood as freedom of "The Press" as an institution with greater rights than ordinary citizens to publish. For example, reporters' privileges, distinction drawn in McCain Feingold between institutional press and others with regard to commenting upon candidates prior to elections.
6.15.2007 11:36am
Spartacus (www):
re: plural verbs with collective nouns: as an American reading the English Reports, I was surprised at first by "this Court are of the opinion" or "this Court have consistently held".
6.15.2007 11:43am
Stevethepatentguy (mail) (www):
Shelby Foote, whose books were the basis for PBS's 'Civil War', wrote an essay on the plural versus singular United States. (Sorry I can't find a link). His thesis was that break point between the plural U.S. and the singular was the civil war. Prior to the war, the country was referred to as "these United States" and afterward as "the United States".

As I have started reading British news accounts, I have discovered that the British have different rules for matching verbs with collective nouns. Amar and Justice Thomas may be correct that the verb usage is significant or it could be that American English has evolved away from British English in this area.


Oh yeah and there is this old joke:
Are there any news?
Not a single damn new.
6.15.2007 11:54am
martinned (mail) (www):
"Prosecute" means to pursue a case--thus and is not limited to criminal law.

While "lawyer" and "attorney" are synoyms, their roots are completely different. A "lawyer" is a person trained in the law and authorized to appwar in court.

"Attorney," on the other hand, is a person authorized to act on someone's behalf--whether in court or elsewhere.

Thus someone who holds a Power of Attorney is an Attorney-in-Fact--and may not be a lawyer at all.

Because of this, "Attorney at Law" is not redundant.


Good example. That's why I always use the, originally French, word of jurist to describe myself. (I have a law degree but I'm not a member of the bar.)
6.15.2007 12:01pm
M.E. Lopez (mail):
Stephen Carlson,

You wanted to know what Zathras was talking about with respect to subjective/objective. As I faced that exact same problem when I came to law school, I shall attempt to elaborate.

The law views "subjective" with respect to the the individual, and "objective" with respect to majority views. Thus, while my belief that I had permission to enter Blackacre might be subjectively reasonable (i.e., it's really, truly reasonable to me) it might be "objectively" unreasonable in the sense that pretty much everyone else would say that, no, I had no business infering permission from the fact that the sky had turned green and just last night I had been praying for a sign that I could enter Blackacre.

In Philosophy, on the other hand, both of those uses would be subjective, becuse they are both concerned with how people are interpreting things; it doesn't matter if everyone in the world agrees on something -- unless it's actually based in hard, physical reality (or in some valid conclusion drawn therefrom) it's not objective.

It drives those of us who care about such things nuts to hear the phrase "objectively reasonable" because the idea of reasonability inherently involves subjective judgments. Even if every sentient being in the universe acknowledged something's reasonability, it would still be a subjective judgment, made billions and trillions of times over.

That's what, I'm fairly certain, Zathras was talking about.
6.15.2007 12:07pm
Bill Harshaw (mail) (www):
It's worth pondering the meaning of "individual", in the context of frontier living in the 1760's. People had families of 6 to 10 kids, living in one-room cabins smaller than today's master baths in McMansions, sleeping in the same bed, eating from the same pot. Their only safety net was the help of neighbors. So they knew which of their neighbors were trustworthy, who was sharp, who knowledgable, and who crazy, who would fight and who would run. If they attended church, their intimate behavior was scrutinized by the minister and fellow church members. They had their "betters", knew who was gentility and who was not, where they placed in the social order. If the French or Indians attacked they were dependent on a well-armed militia.

I think that just as the meaning of "militia" has changed in 250 years, so has the meaning of "individual".
6.15.2007 12:11pm
Porkchop:
In a similar vein, the misuse of "depose" to mean "take a testimony of a witness" annoys me. "Depose" means "declare under oath" -- witnesses depose, but lawyers don't; they take depositions. Think about the standard language for an affidavit: "Being first duly sworn, affiant deposes and says . . ." I'm fighting a losing battle. Sigh.
6.15.2007 12:12pm
Zathras (mail):
M.E. Lopez: Exactly correct. Thanks for the exposition of my point. This issue was extremely frustrating at the beginning of law school, because I thought I was missing something key about the meaning of an objective standard. It was entirely subjective!
6.15.2007 12:25pm
David Drake:
"At the half, Manchester United have left the pitch in control of the match."
6.15.2007 12:50pm
Dan Weber:

Free Speech Zone!!

:)
6.15.2007 12:53pm
CJColucci:
At a museum, I saw several different paintings entitled: "The Deposition of Christ." You can imagine my thoughts.
6.15.2007 12:54pm
Ken Arromdee:
I can't believe that even though gun control has been mentioned here, nobody has yet brought up "well-regulated.
6.15.2007 12:59pm
JSA (mail):
Along the lines of Ben Snitkoff's point above, the Constitution uses the word 'their' and not 'its' to refer to the House of Representatives and the Senate in Art I, Secs. 2 and 3.


The House of Representatives shall choose their speaker and other officers; and shall have the sole power of impeachment.



The Senate shall choose their other officers, and also a President pro tempore, in the absence of the Vice President, or when he shall exercise the office of President of the United States.



6.15.2007 1:08pm
Rich B. (mail):
The phrase "From time to time" is currently used synonymously with "sometimes" or "occasionally." A legal historian would know that it meant "since the last time."

So, for example, the President must give a State of the Union address "from time to time." That doesn't mean that he has to do it every once in a while, but rather that when it does, it must cover the period since his last State of the Union address.
6.15.2007 1:10pm
Bill Poser (mail) (www):
Well, it isn't legal but it is humorous: a non-native speaker of English at a dinner party endeavours to explain why he has no children: My wife, she is unbearable. No, she is inconceivable. No, she is impregnable!
6.15.2007 1:10pm
ys:

Respondent:
I'm not sure of the historical origin of each meaning, but the British use "table" to introduce legislation, and Americans use "table" to kill it.


My guess would be, one assumes "on the table" while the other "into the table". A similar expression in Russian is "put into a long drawer" (but that has very specific historic connotations). Compare also "run for an office" with "stand for an office" (St.Sebastian-like?). Gives an idea of an American preference for dynamism. Also, on the other end of an office: "step down" vs. "stand down" (moving without moving?)
6.15.2007 1:14pm
Anderson (mail) (www):
Teaching my grandmother to suck eggs I'm sure ... but the Bantam Books edition of the Federalist Papers is valuable for Garry Wills's glossary of words that don't mean now what they meant then.

I don't have it before me to quote, but it's a handy thing.

—Ah, the same thing apparently is included in his book on the Federalist Papers, Explaining America. Here's his lovely example:

"Your argument is obnoxious, but it will be liquidated once its specious character is uncovered." That sentence would not be considered friendly today. But its terms were not hostile in the eighteenth century. We need to translate: "Your argument, though exposed to malice, will become clear when its attractive distinction is revealed."
6.15.2007 1:25pm
bjr26:
Meadow Soprano: "The individual is at the mercy of the State!"

Tony Soprano: "New Jersey?!"
6.15.2007 1:31pm
gab:
"Debrief." Now that's one I never fail to get a good chuckle out of.
6.15.2007 1:41pm
Dave Hardy (mail) (www):
"United States" is plural in one of the post Civil War amendments, I think the 15th.

I liked the case of the diplomat to the US, who, upon seeing a cute child, told people "my wife is unbearable." Upon seeing them confused, he added "my wife is inconceivable." Finally, he explained "My wife cannot have children."
6.15.2007 1:42pm
Kelvin McCabe:
Sorry if not quite on topic:

Someone above mentined 'prosecute' noting that it does not always reside in the criminal law. I prefer the even older term 'prosecutrix.' It presumably denotes the plaintiff in a civil suit, although i think i also remember it referring to simply the party pursuing the appeal (so could be a losing defendant).

Its like a sexy combination of prostitute and dominatrix*, which may well accurately describe a sizeable portion of today's plaintiff-side civil bar. Or maybe it was the slip of the tongue of a senile and perverted judge whose mishap made it into the reporters to be followed by other judges. Either way, i think it should get more use. I would love to refer to opposing counsel's (male or female) argument or theory as the prosecutrix's. Some juries and judges may dig it.
(be sure to know your audience before use)

*No offense meant to any members of the civil bar at this site.
6.15.2007 2:04pm
Milhouse (www):
Respondent:
I'm not sure of the historical origin of each meaning, but the British use "table" to introduce legislation, and Americans use "table" to kill it.
My guess would be, one assumes "on the table" while the other "into the table".
Nice try, but no. They both mean "on the table", but they're referring to different tables. In the USAn usage, the table a motion is "laid upon" is a side table, on which things are put to be dealt with later, like the table on which you put junk mail which ends up accumulating strata like a geological site. Once something is laid on the table one shouldn't expect it ever to be taken up again.

In the British usage, the "table" is the one that the government and opposition front benchers sit at. Before a motion can be discussed, or a document can be referred to, it must be put on the table, so that other people can read it and be able to address it. "Tabling" something is the same thing as "introducing" evidence in court.
6.15.2007 2:04pm
AV:
To corneille1640:

I work for a minister in the Canadian govt and, yes, to "table" something means to "introduce it [into the record]." One can table legislation; table a document one is quoting from; table one's expenses; table a document about which there is some controversy. Etc.

Actually, sometimes our language is even more antiquated than the Brits. For ex, we refer to 'ridings', whereas now the English now call them constituencies. Same goes, I think, with New york property law, which is far more arcane and antiquated than what is used in England &Wales nowadays.

AV
6.15.2007 2:05pm
PersonFromPorlock:
Gosh, how about "freedom?" Anyone who's used to thinking of "freedom" as meaning "freedom to" is going to be vastly misled as to its PC useage meaning "freedom from." And vice versa, of course.
6.15.2007 2:06pm
Frater Plotter:
"Moot".

In British English, an issue is moot if it is appropriate for discussion; it is proper to bring up at a meeting (a moot). In American English, it is moot if it is no longer relevant to discussion. Likewise, "to moot" in British is to place a topic before the meeting, while in American it is to render a topic irrelevant.
6.15.2007 2:07pm
Dave N (mail):
Anderson:

"Your argument is obnoxious, but it will be liquidated once its specious character is uncovered." That sentence would not be considered friendly today. But its terms were not hostile in the eighteenth century. We need to translate: "Your argument, though exposed to malice, will become clear when its attractive distinction is revealed."

Sounds an awful lot like the commentary often seen here.
6.15.2007 2:07pm
Closet Libertarian (www):
I had the same problem with subjective that Zathras did. I also had a similar problem with civil: a contrast to criminal or to common law (I only knew of the first distinction before law school). When I figured this out, I was next confused about whether judicial interpretation of statutes was called common law or not. I certaintly don't think Holmes would have included it, but now I think it is.
6.15.2007 2:08pm
Bill Poser (mail) (www):
AV,

At least here in northern BC, although we have "ridings", we have "constituency associations" and "constituency assistants".
6.15.2007 2:11pm
Aleks:
Re: in the late eighteenth century nouns ending in "s" were commonly assigned plural verbs, regardless of whether the noun itself was plural or not

Huh? So the Founders would said "sassafras are delicious"? Somehow I doubt that. No, anyway you slice it "states" is a plural noun. Now, I can easily buy the argument that "the United States" gradually came to be seen as singular (it is one nation after all), but for a while the plural nature of the noun dominated grammatically, without much bearing on political views. After all we still treat "pants" and "glasses" as formally plural by grammar even though we obviously know they are singular objects. By the way, how did the Founders speak about "the Papal States"? For that matter, isn't "Les Etas units", "os Estados Unidos", "die Vereinigten Staaten" and so forth still treated as gramatically plural in those languages?
6.15.2007 2:12pm
James Ellis (mail):
"Invitee" is a word that comes to mind. It means someone who was invited to something. Laymen generally associate that with invitations they get--to parties, dinners and other social events. They rarely consider themselves to be "invited" to Walmart.

But the social invitee is actually a "licensee."
6.15.2007 2:17pm
non-native speaker:
Also in Spanish, there is a clear transition from "los Estados Unidos son" (the United States are) to "Estados Unidos es" (United States is).

I think that there is no implication about whether these are several united States or one Nation; it is simply more convenient to say it in singular, as other countries' names are also in singular (except The Netherlands ("los Países Bajos"), but we say Holland any way).

In my view, the plural form ("los Estados Unidos") is more elegant.
6.15.2007 2:26pm
jimbino (mail):
A classic example of time's effect on word meaning are the words in Art I, Sec 8 of the Constitution "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right ...." Folks nowadays would consider it quaint to have copyrights for science and patents for art, but in those days science was associated with knowledge and art with engineering.
6.15.2007 2:39pm
ys:

Folks nowadays would consider it quaint to have copyrights for science and patents for art, but in those days science was associated with knowledge and art with engineering.

"Art" was simply a mode of doing things (that's the meaning in German, for instance), basically technology. That's why we still use a qualifier "fine arts" when talking about paintings etc.
6.15.2007 2:59pm
Timothy Sandefur (mail) (www):
To me, two stick out: "corporation" and "monopoly." The concept of a corporation has undergone such dramatic changes in the last three or four centuries that it is really almost silly to use the same word. Blackstone's description of "corporations" in the Commentaries for example has virtually nothing in common with the modern for-profit, private business corporation. Jefferson is often quoted as saying that corporations are bad and dangerous things, but he was referring to the traditional semi-sovereign entity with which he was familiar, not with the modern, wholly private institution that is based in contract, not in sovereignty. Yet people continue to claim that corporations are "creatures of the state" because they are given charters by the state--which represents thinking more appropriate to three centuries ago. (I don't intend to get drawn into a further discussion of this issue; I will refer those interested to Robert Hessen's excellent book In Defense of The Corporation.) Indeed, one still sees vestiges of the older notion of corporations in legal references to "corporations other than municipal," or in the Chicago city attorney, who's called the "corporate counsel."

The same is true of "monopoly," which once referred to a government-privileged entity against which it was illegal to compete, a la the playing card monopoly in Darcy v. Allen. But during the mid-ninteenth and twentieth centuries, it came to refer simply to whatever successful business the speaker wanted to slander. Justice Brewer commented on the way this word was being redefined in 1892 in his dissent in Budd v. New York: "There are two kinds of monopoly; one of law, the other of fact. The one exists when exclusive privileges are granted. Such a monopoly, the law which creates alone can break; and being the creation of law, justifies legislative control. A monopoly of fact any one can break, and there is no necessity for legislative interference. It exists where anyone by his money and labor furnishes facilities for business which no one else has. A man puts up in a city the only building suitable for offices. He has therefore a monopoly of that business; but it is a monopoly of fact, which anyone can break who, with like business courage puts his means into a similar building."

Whatever one's political attitudes toward modern corporations or "monopolies," it is extremely misleading to quote antique statements about these two things as if the words meant the same thing in 1799 as they did in 1899.
6.15.2007 3:04pm
Eugene Volokh (www):
PersonFromPorlock: I'm not sure quite what you mean as to freedom. Could you elaborate, please, and talk a bit about why you think its meaning has changed substantially?
6.15.2007 3:05pm
bc:
I realize this is not exactly what EV had in mind when he posted the above, but it reminded me of this almost forgotten experience from my past. Before I get to the word that gave me trouble just prior to law school, I must inform that what follows is an anecdote from the lone Civil Law (as opposed to Common Law, hat tip "Closet Libertarian") jurisdiction in these United States--i.e. Louisiana. Just prior to attending law school I was speaking with a childhood friend, who had just been admitted to the bar. It escapes me how the term came up in the conversation, but my friend mentioned the word "usufruct". I paused, became a little confused and began asking myself did he just say what I think he said. If that's what he thinks of my chances in law school, maybe I should find another career.

A few months and a couple trips to my Civil Law Property course later I learned that usufruct means, as Black's defines the term, "a right to use another's property for a time wihtout damaging or diminishing it, although the property might naturally deteriorate over time." I am proud to report, despite my friends lack of confidence, that I eventually excaped law school with a degree and am now able to pass over usufruct and similar words without batting an eye.
6.15.2007 3:14pm
PDXLawyer (mail):
"Suffer" and "permit." The legal meaning of "suffer" is to have something happen passively - good or bad. In the King James version of the Bible, Jesus says "suffer the little children to come unto me." The key difference from "permit" is that "permit" includes affirmative approval for something. Thus, I suffered my dishes to sit in the sink overnight last night, I did not permit it.

"Breaking" as in "breaking and entering." Breaking means simply to cross a barrier, even if it is done without damage. If you leave your door unlocked, and I go into your house to steal your TV, I have "broken" into your house, even if I never caused damage.

"Prayer," which means a request, not necessarily one addressed to God.

"Art" means any skill, even one which is technical. Thus, being an auto mechanic is an "art"
6.15.2007 3:16pm
arthur (mail):
"Persons" in the days of the Founders would not have been understood to apply to coporate entities. this makes sense to most Americans today, but not to most lawyers who have internalized a bit of nineteenth century activism.

"People," "person," and "persons" appear non-interchangeably throughout the Bill of Rights,
"People" meant something rather different than "plural form of person" back then. Hence the fourth Amendment starts with, "The right of the people to be secure in their persons . . ."

Re: the Second Amendment, besides considering the changed meaning of "militia," "well regulated," and "the People," there is the issue of what counts as "arms." E.g. "concealed firearms" made no sense in an era when all firearms were too large to conceal. you might as well wonder whether the right to own a car encompasses the right to carry a concealed car. Likewise with automatic, semi-automatic, easily reloadable, or accurate at any distance firearms. Whaatever they were talking about, it wasn't the firearms we deal with today.
6.15.2007 3:16pm
KevinM:
Non-lawyers frequently don't understand our use of the term "arguably."
(Digression: I had a professor who used to say that the existence of the term "non-lawyer" tells you everything you need to know about lawyers, adding: "Did you ever hear of a non-dentist?")
To a lawyer, it indicates at least mild approbation: you could make a case for it, but I'm too lazy to do it at the moment, and it's not critical to the point I'm making. To non-lawyers, it tends to have a more hostile connotation - to say it's "arguable" implies that it's unlikely to be valid or true.
6.15.2007 3:16pm
tvk:
a jury of one's peers

a patent (to land)

solicitor (still used in the UK, so not really historical)
6.15.2007 3:17pm
KevinM:
I should add that this whole exchange strikes me as a criminal conversation.
6.15.2007 3:18pm
Dilan Esper (mail) (www):
How about "offer"? In contract law, it means words or action which, if agreed to by another person, will form a binding contract. However, many things that we would consider "offers" in the colloquial sense, such as advertisements, are merely "invitations to make an offer" under contract law.

Another good one is "equity". This is probably the best one I can think of to make Professor Volokh's point about the terms in the Second Amendment. The colloquial sense of "equity" is fairness. On the other hand, the legal meaning of a court of equity has only a tangential relationship to that meaning. I don't mean that courts of equity are unfair, simply that the term doesn't refer to a court that is more or less fair than any other court. Rather, it refers to a court that hears the kinds of cases that the Chancellor in the traditional English system heard.

The word "science", in the copyright clause of the Constitution, is another example. This is generally taken not to mean "science" as we use the term now (in fact, that is actually subsumed in another portion of the clause, referring to "useful arts"), but rather to literary works of authorship.

An obscure one is "manual tradition" in property law. "Tradition" doesn't refer to something that has been done consistently over time. It just refers to handing a deed from one person to another.

"Actual malice" is a very good one. It doesn't mean that a person is actually malicious; it means the opposite, a sort of presumed malice that comes from recklessly disregarding the truth.

(Of course, if I were to get snarky, I might also mention "citizens of another State" in the Eleventh Amendment, which to a majority of the Supreme Court apparently means "citizens of the same State". I know, I know.)
6.15.2007 3:26pm
James Ellis (mail):
To Bill Poser:

Maybe she's just inscrutable!
6.15.2007 3:29pm
Mark P. (mail):
"I don't mean that courts of equity are unfair, simply that the term doesn't refer to a court that is more or less fair than any other court."

Dilan,

I've got to disagree with you on this one. The Chancellor (and, subsequently, the Courts of Chancery) in England was precisely intended to act as a court that was FAIRER than the common-law courts. In a common-law court, the law may have required a lawful, but unfair, result; the plaintiff's redress was, instead, to pursue his case in Equity. ("Equity will not suffer a wrong without a remedy" is a maxim explicitly in contrast to the common-law courts, which all the time allowed a wrong to exist without a remedy.) Of course, there were limitations on the jurisdiction, power, and remedies of the Chancery, but the fundamental purpose for its existence was to establish justice that could not be found in the common-law courts.
6.15.2007 3:53pm
Malvolio:
To go back to the original example, both "embarrassed" and "embarazada" mean "burdened" -- albeit with very different burdens.
6.15.2007 3:58pm
SeaDrive:
"Interest" (sans adjective) in the 19th century meant business or financial interest, never social or familial motivation.
6.15.2007 4:11pm
Michael Scott:
There are old, mostly procedural terms that might look familiar like "demur" (which doesn't mean to object but to file a demurrer), "plaintiff in error," "demise," or "denizen" but really mean something different. Also, it strikes me that there may be some concepts, and I can't put my finger on anything specific, that mean something slightly different or only make sense when considered in light of the old, strict separation between law and equity.
6.15.2007 4:13pm
Seamus (mail):
as other countries' names are also in singular (except The Netherlands ("los Países Bajos")

I think the Philippines, the Maldives, the Northern Mariana Islands, and the Turks and Caicos Island are still plural (as were the United Provinces, back when that's what we called the Netherlands).

I would think that countries with two-part names such as Trinidad-and-Tobago and Bosnia-and-Herzegovina ought also to be plural, but it wouldn't surprise me to find that we're forced them into the Procrustean bed of singularity.
6.15.2007 4:25pm
Dave N (mail):
As a side note to Mark P.'s excellent post above:

In our legal system, Courts sit in both law and equity and while there are some exceptions, the simple way to remember the distinction is that ir something is tried "at law" then a jury can help decide the facts. If, on the other hand, you are seeking an "equitable" solution then the judge alone resolves factual and legal issues (think of injunctions or habeas corpus relief).

In the old English system, the Chancery Courts could issue an injunction preventing a ruling from a Law Court from being carried out. Again using habeas corpus as a current example, a court sitting in equity can enjoin the warden from executing a condemned inmate, even though there is a valid legal judgment calling for that inmate's death.
6.15.2007 4:30pm
Dave N (mail):
I should have included in my previous post the real simple way to usually tell the difference between "law" and "equity." When you are seeking a legal remedy, you are seeking money. When you are seeking an equitable remedy, you are seeking an order from a court requiring someone/something else to act.

I realize this is very counter-intuitive.
6.15.2007 4:37pm
Doug Sundseth (mail):
I don't think anyone has mentioned "brief", the lawyers' use of which seems antonymous to the preferred usage of those who speak English as a primary language.
6.15.2007 4:51pm
Anderson (mail) (www):
EMILY LITELLA: ... So, obviously, politics should play *no* role in hiring people for civil service jobs! What has this country come to, that we even have to ask --

PRODUCER (offscreen): The post title's been changed -- it's "ideology," not "politics."

LITELLA: Ideology? Well, that's completely different. Never mind, then.
6.15.2007 5:07pm
Anderson (mail) (www):
LITELLA: Wrong thread? Well, never mind then!
6.15.2007 5:07pm
Syd (mail):
CJColucci:
At a museum, I saw several different paintings entitled: "The Deposition of Christ." You can imagine my thoughts.


So Christ not only saved, he made deposits?
6.15.2007 7:14pm
FantasiaWHT:
I can't believe nobody's said this:

Fee simple absolute!

The first time I ran across those words in law school I think I stared at them for 10 minutes trying to find any combination of meanings for those three words that would make any sense at all when combined.

It became a lot more clear when I learned that "fee" derived from fief.

It's not a legal false friend, but I wish you would've included this in your blog, EV- in German, the word "gift" means poison.
6.15.2007 7:33pm
FantasiaWHT:
Oh i forgot this- I didn't know what "emabarazada" meant in Spanish, so I used Babel Fish... which gave me embarassed, heh.
6.15.2007 7:34pm
PersonFromPorlock:
EV: I was thinking of nothing more complicated then how, in the PC world, "freedom to speak" (for instance) has morphed into "freedom from offensive speech," and how this shows two very different usages of the word "freedom."

The "to" and "from" are only symbols of the underlying difference between the two; the real difference is that "freedom to" promises opportunity, while "freedom from" promises security, usually by interfering with somebody else's "freedom to". These usages are pretty much antithetical and since the version of "freedom" being talked about is often unspecified, even in the speaker's own mind, the word has developed an ambiguity that can mislead.
6.15.2007 8:26pm
Frater Plotter:
There are plenty of "freedoms from" that are quite legitimate, PFP. For instance, consider the freedom from unwarranted search and seizure.

The difference you're trying to express sounds similar to the political philosophy notion of "negative rights" and "positive rights", where libertarians usually disfavor claims of positive rights -- but it isn't quite the same. For instance, a "freedom from offensive speech", if it existed, would be a negative right, just as with a "freedom from offensive physical contact", which we call a law against battery.

The difference between the two is not a matter of "freedom from" or "freedom to". It is that certain claims of "freedom" or "rights" are just and defensible, and others are not. The distinction is not to-and-from, but right-and-wrong. It is right to use the force of law to defend others from battery; it is wrong to use the force of law to defend others from speech.
6.15.2007 10:36pm
Stephen C. Carlson (www):
Thanks to Lopez and Zathras for answering my question.
6.15.2007 10:41pm
Bemac (mail):
"Corporate" means one thing in a business context and something very different when discussing fascism.
6.15.2007 10:58pm
Bruce:
"Monopoly." It now means having market power over a product or service. The Framers appear to have used it to mean "an exclusive privilege bestowed by the government." See, e.g., any number of IP debates quoting Thomas Jefferson.
6.15.2007 11:10pm
Bruce:
Hmmm. Read comments first, THEN post.
6.15.2007 11:12pm
Pub Editor:
* Many modern students may have difficulty understanding how the Constitution can try to effect a "more perfect Union." In current speech (I think), perfect is a superlative form, like best.

* In the same vein, many readers may not understand the Constitution's references to Bills of Attainder and Letters of Marque and Reprisal.

* When the Framers refer to "inferior" tribunals or "inferior" officers, they are not using that term disparagingly.

* What is "corruption of blood"?

* When writers in the eighteenth and nineteenth centuries refer to "parliaments" and "senates," they are often referring to any legislative assembly, and not necessarily to the British Parliament or the U.S. Senate. Likewise, writers of those periods will sometimes refer to the President as the "Chief Magistrate."

* And, clearly, writers in former centuries used the term "intercourse" to refer to conversation, commerce and a wide range of activites, whereas we limit the word's use to a more specific context. :)
6.15.2007 11:20pm
Sebastian Holsclaw (mail):
For those interested in the topic, C.S. Lewis has a great book on the topic of false friends and similar errors in thinking in reading Medieval and Renaissance Literature. It is called "The Discarded Image: An Introduction to Medieval and Renaissance Literature".

One of the things that struck me years ago was the view of celestial space. They didn't know it was a vacuum so they though of it is a bright space.
6.16.2007 12:48am
Eugene Volokh (www):
PersonFromPorlock: Can you point me to some evidence that the Framers didn't use "freedom" in the sense of security? As Frater Plotter pointed out, one can certainly conceptualize many "freedoms to" as "freedoms from" (e.g., freedom from having the police beat you up because of your speech is an aspect of the freedom to speak).

But even if you limit the "freedom from" that you disparage to "freedom from private action," why do you think people of the Framing Era wouldn't conclude that "freedom" could indeed mean freedom from private action?
6.16.2007 2:22am
lesliek:
Shame on me for not reading every comment before posting this, but I did see discussion about words that may mean A or NOT A. Searching Google for "contronym" (a word so far not appearing in this thread) yields interesting material about such words.
6.16.2007 4:36am
PersonFromPorlock:
EV: I suppose the classic example would be Franklin's "The man who trades freedom for security does not deserve nor will he ever receive either." Pretty clearly, Franklin, at least, saw 'freedom' and 'security' as being not only different from each other but antagonistic. Of course, he was looking at 'security' as a standard for governance; private security (wealth) would have been fine.

This is only a partial answer to the good questions you raised but it's the best I can do at the moment; I'm bushed, beaten and ground to rubble under the wheels of a gardening wife, and at any rate this thread is pining for the fjords. I may follow up with an e-mail.
6.16.2007 9:10pm
David Maquera (mail) (www):
In reading Ron Chernow's biography on Alexander Hamilton (almost done), I realized that "levee" means a soiree or social gathering of sorts. Apparently, President Washington had to host levees at least once a week while serving as President.
6.17.2007 9:55am
ELK:
Speaking of security, I always had trouble making the mental gear-shift necessary to use the word in its legal/financial context: stocks, bonds, etc. To say nothing of "secured creditors" and so forth.
6.17.2007 11:10am
Bob Goodman (mail) (www):
How are the various other "united states" handled, such as the Estados Unitos de Mexico?

Has the abortion thing really gone that far? 30 years ago when I was taking Obs-Gyn, one patient asked, "Why do doctors call a miscarriage an abortion?" I wasn't even familiar at the time with the word "miscarriage", although I'd heard it. But have doctors actually dropped the term "abortion" to apply to spontaneous cases, and picked up the words "miscarry" and "miscarriage"? They sound so quaint, but then you guys use "mistrial", and it's analogous.
6.17.2007 5:55pm
ThePartyoftheFirstPart (mail) (www):
Let me add a few that (as far as I can tell) have not been mentioned.

Nuisance, mayhem, consideration, constructive, and assault. In each case, the legal meaning differs from the everyday English meaning. (I'm assuming the people reading this thread are familiar with the legal meanings; if not, please post, and I'll elaborate).


Another possibility is person. In everyday English, a pretty simple concept. In the law, a "person" includes a corporation, of course. Laurence Tribe has argued that chimpanzees should be deemed "persons" for the purpose of constitutional rights. Injured prisoners have sued police dogs on the basis that they were "persons."
6.17.2007 6:00pm
Eugene Volokh (www):
PersonFromPorlock: That illustrates one way one person used the word in one context -- it doesn't show that in that generation "freedom" could not be used to mean freedom from private oppression.
6.17.2007 6:33pm
speedwell (mail):
Hello, PartyoftheFirstPart... just letting you know; I'm a regular reader and not a lawyer or law student, and I learn a lot here, but it would be especially instructive to me if you would indeed expand on those words. Thanks :)
6.17.2007 9:16pm
Helpful Reader:
Other than somebody repeating a joke, I don't think I saw anyone questioning the claim in the original post's quote that "news" was originally plural, then singular, without a reconception. Isn't it in fact the case that "news" was originally a substitute word for the longer phrase or idea of "new items," "new happenings," or whatever, such that several new items together really were considered "news" whereas one by itself would have been a "new ___ "? In that sense, then, there has been a reconceptualization of the word. Where it once meant several pieces of new information, now it is a blanket word covering an entire collection of new information, and accordingly has shifted from plural to singular. In exactly the same way that "the United States" has. Uh, have.
6.18.2007 12:48pm
ThePartyoftheFirstPart (mail) (www):
Speedwell (and other non-lawyers), let me expand on my earlier post. Here are the legal meanings of words that have a separate life in plain English.

Nuisance: doing something with one's own property that interferes with a neighbor's right to enjoy his.
Mayhem: dismembering or disfiguring another person (related to "maim").
Consideration: what one party to a contract gives in exchange for the other party's promise.
Constructive: treating something as though it happened, even though it didn't (for example, a landlord's conduct might be so bad as to constitute "constructive eviction" even though he never actually ordered his tenants to leave).
Assault: traditionally, a threatening action or gesture. If blows are actually landed, it's battery
6.18.2007 9:08pm
Clemencia Johnson (mail):
Two additional words that do not mean the same thing in English that I have run into are these:
"Molestar" is not the same as "molest." It mostly means to bother, to annoy. One has to be very careful to not translate as the word "molest" because it has mostly nothing to do with sexual abuse. In a court case for example, it would be much better to ask the individual to explain what he means by "molestar."
Another word that often came to mind when translating was to "excite." Mostly, in English we mean to be "upset" or "enthusiastic" but it may not be the case in Spanish. A person must be careful about translating the word as "excitar" which sounds more like "getting sexually aroused."
6.19.2007 12:56am