The Lingua Franca
Coming to law school is sort of like learning another language; and for the most part, the vocabulary is clearly marked. No one really expects students to know the meaning of res ipsa loquitur means before law school, and so the professor will explain the concept. Ditto for expectation damages, or piercing the corporate veil, or other peculiar vocabulary terms.
However, underlying these explicit (and usually well-explained) new words is a minefield of other new words and ideas, many of which may be second-nature to the law professor — and so, which may never be explicitly defined or explained. These are words that students will be simply expected to know or understand. When students don’t know these words, it can cause no end of grief.
I still remember vivid law-student experiences of my own with three such words. I remember sitting through several very muddled days of 1L year because I had no idea what “prima facie” meant. The professor used the term constantly, and I could not figure out from context what it meant; unlike other terms, it was never really defined in class, and Black’s Law Dictionary was ^&* useless. Eventually, I fumbled my way to a half-definition, but I never did really pick up what the term meant during that class.
It wasn’t just prima facie, either. Embarrasingly, I discovered halfway through my 2L year that “conflate” was a real word, and not just a weird idiom used by my Civ Pro TA. And I wasn’t the only one who had these kinds of troubles — during my 3L year, I walked in on a conversation between two of the top law review editors who were debating whether “dispositive” was a real word or a professor-made-up word.
These words too often cause law students to trip up. And they’re often missed, because they’re not the hard legal terms like rule-against-perpetuities, but the other terms that make up the soup of legal discourse, an understanding of which is often assumed.
So, for our law student readers, let me offer a few quick definitions of some such terms (as I see them). I realize that my observation is very anecdotal, and I’ve surely missed some common landmines of this sort — feel free to suggest your own too-often-undefined (or -misunderstood) terms as well.
Dispositive means something that tends to resolve an issue (i.e., move it toward a disposition). So, an argument or a piece of evidence that is dispositive is one that tends to answer the question. Or, someone will say, this [evidence/argument/etc] is helpful, but _not_ dispositive — meaning, that it doesn’t really close the door.
Conflate means to combine two arguments or issues, typically not in a good way. Usually, it’s in the context of not answering one of them — when someone points out that a student is conflating two issues, it’s to say that the issues are distinct and need to be addressed distinctly.
Superfluous means excessive or extra (often regarding language, as in extra language not really needed to understand or apply a document). I use this term a lot when I teach, and every semester, it seems like I get someone asking what it means.
Alienate means to transfer property to someone else, via a sale, trust, whatever.
Real property = land, and Personal property = not land.
Okay, readers – what terms am I missing? Which ones confused you, your 1L year, until you fumbled your way to some muddled definition?