Friday, September 14, 2007

It's English, Jim, but not as we know it....

The coming and going of September 13th quietly marked the completion of one month of law school. As expected, August 13th feels a long way in the past. Looking back to the beginning of any adventure always seems to me to be like looking in the wrong end of a telescope; the sheer weight of experiences dilates time. (Of course, it seems to balance out on the other end, as when you look back at college and go holy *crap*, that was four years?) It's calming to be reminded that only a month ago I had basically no idea what learning the law entailed; the tabula rasa from my first day helps me see that yes, I really have learned something. As I said in my last post, we've all seen the elephant now and we're starting to walk the walk (kind of a hunched-over shuffle from the weight of the backpack and obligatory bookbag) and to talk the talk. And what a strange talk it is! I wanted to share a little bit of the language of law school to help illustrate the sort of concepts and thinking that distinguished law school from any other kind of education.

I still consider "legalese" to be a mild pejorative, but it's pretty accurate characterization of the first most important rule that new law students learn: It's English, Jim, But Not As We Know It. There's a temptation to think that law books are written in English. After all, you pick it up and it says "Contracts" on the cover, and if you open it and flip through it most of the words are familiar. This is a LIE! Only a few pages in you realize that not only are many seemingly familiar words invested with new meanings, but those meanings are rigid, highly structured, and are often only definable by reference to other, similarly loaded words. Clearly after brief consideration one could arrive at the expectation that in a Contracts class the word "contract" would be a technical term. But try writing the previous sentence without "consideration" and "expectation", which are also verboten for casual use because they have specific legal meanings. "Consideration", for example, is "that which is sought in exchange for a promise." And in case you were wondering, "promise" and "sought in exchange" are also a technical terms that need defining.

Teasing out sentences and concepts ends up feeling as much like math or logic, at times, than it does either English or even philosophy. Definitions of some key concepts, like "contract" require a sort of prime-factorization to break them down through all the levels of complexity into their component parts. "Contract" breaks down as follows:

a CONTRACT is formed when there is a BARGAIN and a CONSIDERATION.

a BARGAIN is an AGREEMENT in which a PROMISE (or a promise for a performance, or a performance for a performance) is SOUGHT IN EXCHANGE for a return promise.


MANIFESTATION OF MUTUAL ASSENT is when both parties either make a promise or begin to render a performance

a promise or performance is SOUGHT IN EXCHANGE if it is intended to be induced by and is induced by the original promise

a PROMISE is a manifestation of intent to act such that the other party is justified in expecting the first will perform as promised

and finally

CONSIDERATION is that which is bargained for in exchange for a promise

So, if you unpack this thing totally and then put it back together you have (stay with me here)...

A CONTRACT is formed when one party manifests an intention to act or begins to act, and that manifestation seeks and induces the second party to act.

That's a lot of meaning packed into a two-syllable word!

Beyond loading seemingly familiar words with expansive new meanings, however, there's an altogether new lexicon as well: case law. Though none of our professors have put it this way, it's pretty clear that the cases themselves form a sort of "power user's quick-reference" for those who have internalized the cases and the concepts they stand for. If you can read a case, break it down, analyze the logic, and understand the implications (basically, if you can grok it) then you'll naturally use the name to stand in for the whole expansive concept. Some cases have been digested enough by the public consciousness that anyone with a little Law & Order behind them can wield them. Say "Miranda" everyone knows what you're talking about. Heck, it's even entered common English as a verb; cops routinely "Mirandize" a suspect using the sanctioned words that we all know. "You have the right to remain silent. Anything you say can and will be used against you in a court of law..." (Of course, this is as far as most people can quote because it usually cuts away before they can get any further.)

And yes, there's legal Latin, too, but that's basically just dessert. I'll have to remember to put up a few of the more interesting ones next time.

[Edit: Fixed the literal non sequitor above wherein I left out the factorization of CONTRACT. I had to get my notebook to be sure I did it right. And then I had to get my textbook. And then I still wasn't sure. In fact, I think just trying to lay it out for this post is going to send me back for office hours. I swear; you don't just read contract theory, you debug it.
Also, added photos of CUA campus at night to help break up the block-o'-text (tm).]


Fidus Aelius said...

You seem to have accidentally left out the definition for "contract," a simple error, I'm sure.

Also, I'm sure you can imagine my salivation at the prospect of more latin :)

PNT said...

Yah; I have to consult my notes to make sure I get the whole nested parentheses right, and they're at school. (Not taking work home on a Friday night; it's my evening of rest.) It's forthcoming.

Patrick said...

"Prime factorization" of definitions. Truly, you are a geek of diverse talents, which are more than the sum of the parts. Bravo.