Latin terminology still formidable in Alaska courts
By Thomas Van Flein
The authors of Black's Law Dictionary explain that Latin is in decline "as a working language of scholarship and jurisprudence" but that it still "supplies a formidable stock of legal terms and phrases."
On the other hand, music industry wonks claim that Latin music is on the upswing--so to speak. I decided to make a quick check to see just how formidable the stock of Latin terminology is in the Alaska courts. One of the all time leaders is "inter alia," which has appeared in approximately 495 appellate opinions in Alaska. The first recorded use of this term in an Alaska appellate decision appears to be Goldstein v. Behrends, 123 F. 399, 401 (Ninth Cir. 1903) (Alaska), wherein it was stated that "[t]hese protests alleged, inter alia" several grievous wrongs. Most recently, McCubbins v. State, Dept. of Natural Resources, Div. of Parks and Recreation, 984 P.2d 501, 503 (Alaska 1999), the court explained that the "state answered on December 16, 1993, asserting, inter alia" various righteous defenses. This phrase seems to be alive and well, and if Julius Caesar returned as a law clerk, he may find some comfort in this, as well as some pride when ordering salad at the Marx Bros. Café.
"Amicus curiae" has a respectable 242 appearances. Not only that, but how nice it is to be "a friend of the court." I looked (not very hard) for a term that would equate to "enemy of the court" but I could not find one. I did find a claimant alleging that the court was his enemy, a claim that Judge Wickersham rejected, finding the allegations "vague, shadowy, and indefinite; good enough for calumny and slander, but wholly lacking in courageous and specific statement of fact." U.S. v. Richards, 1 Alaska 613, 617 (D.Alaska 1902). I also found a defendant named "Enemy Boy" who, his moniker notwithstanding, was 47 years old and a high school graduate. "Boy v. McCormick, 967 F.2d 585 (Ninth Cir. 1992). This same "Enemy Boy argue[d] that his guilty plea was not knowing and voluntary?[because] he was hung over when he signed the plea agreement." I will let you surmise whether Enemy Boy got out of his plea agreement with that argument.
Some Latin phrases reflect doctrines, for example the "doctrine of statutory construction, ejusdem generis," which means, according to the court in Cable v. Shefchik, 1999 WL 608004, (Alaska 1999), "the general is controlled by the particular." No doubt there are generals, and perhaps even some rear admirals, who are not controlled by their particulars, but that is not the law. I know this because Black's Law Dictionary said so. See State Farm Fire and Cas. Co. v. Bongen, 925 P.2d 1042, 1052 (Alaska 1996) citing Black's Law Dictionary (6th ed.1990) for this definition. But this doctrine is found in only 18 published Alaska appellate decisions, a fraction of the 224 cases where "res judicata" is mentioned. This may reflect the fact that most generals do not question their particulars or the control it has over them.
In some respects, reducing the use of Latin may help to keep briefs brief. For example, we can say that "contracts in violation of public policy are void" or we can say "contractus ex turpi causa, vel contra bonos mores, nulles est." The modern version takes eight words, the Latin version takes 10 words, a 20% reduction in verbiage which converts to a "slim chance" or a "fat chance" (apparently these opposite terms mean the same thing) that your brief will be under the page limit.
Use of the term "replevin" (an action to repossess goods wrongfully taken) seems to be falling out of favor. For instance, in McGee v. McGee, 974 P.2d 983, 987 (Alaska 1999), "the parties and the court thereafter referred to [the action] as one for replevin" but the Alaska Supreme Court preferred English and stated that it would "refer to it as her 'tort action' or 'tort suit.'" Is "replevin" now officially replaced, discredited from a legal vocabulary? Some have speculated that the court changed "replevin" to "tort action" because "replevin" is not part of the spell check dictionary. No one at the court would return my calls on this point.
Sometimes it is a challenge to work an old Latin phrase into a brief. Maybe that is one reason our use of Latin is declining. Try using "scientia sciolorum est mixta ignorantia" in your next letter or brief. It is defined as "the knowledge of smatterers is diluted ignorance." Obviously we have all questioned the motives of smatterers, and sometimes we ask "what's the s'matter?" but working the whole Latin phrase into an argument could pose a challenge.
I expected more references to "stare decisis" but found only 46, beginning with U.S. District Court Judge Johnson's explanation in 1898 that "[w]hile the doctrine of stare decisis may not be binding upon this court in this case, yet we think the decisions of the highest court of the state of Oregon in construing the statutes quoted should not be departed from, without the gravest reasons for so doing." Kohn v. McKinnon, 90 F. 623, 626 (D.Alaska 1898). This has morphed into its present rendition, where the court in State v. Coon, 974 P.2d 386, 394 (Alaska 1999), reasoned that the court "will overrule a prior decision only when we are clearly convinced that the rule was originally erroneous or is no longer sound because of changed conditions, and that more good than harm would result from a departure from precedent." In other words, legal precedent is kind of like wedding vows on the Jerry Springer show--till death do us part, or until something better comes along.
Next time we will discuss olde English and the law. I know ye can't wait.