Notable Legal Phrases Making News in 2017
by Ken Bresler
Massachusetts Lawyers Weekly,
Rhode Island Lawyers Weekly, December 14, 2017
The most notable legal phrases of 2017 weren’t coined in 2017. If they had been, it probably would be too soon to have noticed them and too soon to gauge their impact, longevity, and usefulness. Nonetheless, these notable legal phrases are fairly new, did make news, and are not in Black’s Law Dictionary. Here are my picks and definitions.
- biosimilar. noun. A biologic product that is “highly similar” to one that the Food and Drug Administration has already approved.
The two-word quotation (and the gist of the definition) is from a 2017 U.S. Supreme Court case, Sandoz, Inc. v. Amgen, Inc.
- ghost gun. noun. Firearm without a serial number that a person has made individually from parts, allowing the owner to bypass a background check and registration requirements, and making the firearm untraceable.
Kevin Janson Neal, who killed his wife and four other people in California in November 2017, evaded a court order against his possessing firearms by building a ghost gun at home. Constructing a ghost gun is not itself illegal.
Turning now to the practice of turning acronyms into verbs and adjectives:
- CORI. verb. To check a person in the Criminal Offender Record Information (CORI) database. Example: “The prospective employee was CORI’d.”
FOIA. verb. To use the Freedom of Information Act (FOIA); to file a FOIA request. Example: “She FOIA’d the policy manual.”
FOIA’d. adjective. Pertaining to documents obtained through a Freedom of Information Act (FOIA) request. Example: “The FOIA’d voice mails reveal that….” verb. Past tense of “to FOIA.”
In February 2017, Senator Edward J. Markey of Massachusetts was dissatisfied with the documents that the Trump Administration had provided to support the nomination of Scott Pruitt to head the Environmental Protection Agency. He said, “‘Go FOIA yourself’’ is not a sufficient response….” Markey may have meant to sound vaguely vulgar.
What would this annual list be without a legal term about sex? See “sextortion” in 2016, “sexsomnia” and “revenge porn” in 2014, and…
- slut shaming, slut-shaming. verb, noun. 1. To gratuitously attack a party or witness for alleged sexual conduct or promiscuity, or publicize it during legal proceedings, to gain a strategic advantage, such as discouraging the party or witness from proceeding, or to punish him or her. 2. noun. A form of defamation alleging sexual promiscuity.
The term has appeared for a few years in legal journals and pleadings. The blog Above the Law used it twice recently.
The first mention was in a piece about Summer Zervos, one of the 11 women who, during the presidential campaign, accused Donald Trump of sexual misconduct. His response to the accusation defamed her, she alleged in a lawsuit. President Trump’s motion to dismiss “basically argues slut shaming is protected speech,” according to the headline to Elie Mystal’s piece in November 2017.
The other Above the Law piece is about a plagiarism lawsuit against writer Emma Cline. The lawyers against her, including the prominent litigator David Boies, alleged that she had engaged in various sorts of eyebrow-raising sexual behavior. The lack of relevance to her alleged plagiarizing was also eyebrow-raising. The headline to Kathryn Rubino’s piece in December 2017: “David Boies Under Fire For ‘Slut-Shaming.’”
Rapid developments in gender identity law have spotlighted various terms, including….
- cisgender. noun. A person whose sexual identity corresponds with the legal sex he or she was assigned at birth. adjective. Pertaining to a cisgender.
“Cis” is the Latin for “on this side of.” You can think of “cisgender” as the opposite of “transgender.”
2017 brought other milestones in gender-identity legal terminology. New York City earlier issued a birth certificate reading neither “male” nor “female,” but “intersex.” The city’s Department of Health and Mental Hygiene issued a corrected birth certificate on December 15, 2016 for Sara Kelly Keenan, who had been born 55 years before in Brooklyn. Keenan didn’t receive the intersex birth certificate and the public didn’t learn about it until January 2017.
In October 2017, California adopted the Gender Recognition Act, which, among things, allows gender designations on birth certificates of male, female, or nonbinary.
But immigration was probably the biggest legal discussion of the year, and it involved the most notable legal phrase of 2017.
- sanctuary city, sanctuary jurisdiction. noun. City or jurisdiction whose officials provide sanctuary to refugees, undocumented immigrants, and other non-citizens by hindering or not complying fully with federal immigration laws. Defined more narrowly by Executive Order 13768 (Jan. 25, 2017) § 9 as a “jurisdiction[] that willfully refuse[s] to comply with 8 U.S.C. 1373,” which governs communications between federal immigration officials and state and local officials.
“Sanctuary city” is appearing in pleadings and reported cases. Although the next two terms are not new, they, too, figure in the immigration debate and could use some disambiguation.
Deferred Action for Childhood Arrivals (DACA). noun. Policy announced by the Department of Homeland Security in 2012, and phased out by the Trump Administration in 2017, not to deport certain undocumented aliens who were brought to the U.S. as children, and to grant them access to various benefits, including work authorization and drivers’ licenses. DACA recipients are often imprecisely called “Dreamers.” See Dreamer.
Dreamer. noun. Alien minor who could receive conditional and then permanent residency under legislation first proposed in 2001, but not passed, called the DREAM Act, for Development, Relief, and Education for Alien Minors Act. Often used imprecisely as a synonym for a recipient of Deferred Action for Childhood Arrivals (DACA). However, the DREAM Act’s provisions overlap with, but do not coincide with DACA, and the DREAM Act has not passed.
I thought that the word “Obamacare” (which is in Black’s) would be a goner in 2017. But Obamacare, both the legislation and the word, has survived. DACA, in contrast, is not a legislative creation whose repeal would have to get through Congress. It’s not a creation of regulations, whose repeal must follow regulatory procedure. It’s a policy, making it easier for the Trump Administration to jettison. Let’s see if “DACA” is still in my online dictionary, Bresler’s Law Dictionary, in a year.