And the Most Notable Legal Terms of 2023 Are…
by Ken Bresler
Massachusetts Lawyers Weekly, January 5, 2024
Virginia Lawyers Weekly, January 7, 2024
Michigan Lawyers Weekly, January 11, 2024
Missouri Lawyers, January 11, 2024
Minnesota Lawyer, January 15, 2024
North Carolina Lawyers Weekly, January 20, 2024
Rhode Island Lawyers Weekly, January 29, 2024
The most notable legal phrases of the year weren’t coined in the past year. If they had been, it probably would be too soon to have noticed them and too soon to gauge their impact, longevity, and usefulness. The criteria for 2023’s most notable legal terms, as in past years, are that the terms are fairly new, made news, and are not in Black’s Law Dictionary.
Beginning the count-down, the most notable legal terms of 2023 and definitions are…
5. Texas two-step. noun. Procedure in which a legal entity generally splits into two entities and assigns assets to one entity and liabilities to another, the latter of which then declares bankruptcy. Facilitated by the Texas Business Organizations Code and named for a dance step. Also called “divisive merger” or “divisional merger.”
What is probably the most prominent example of the Texas two-step involves Johnson & Johnson. After tens of thousands of plaintiffs accused J&J of selling talcum powder contaminated with asbestos, the company spun off its talc-related liabilities into LTL Management, which filed for bankruptcy.
The Texas Two-Step is “infamous” but not “inherently unlawful or improper,” declared a federal bankruptcy judge in New Jersey in 2022. In a 2023 ruling in the same case, In Re LTL Management, LLC, the Third Circuit Court of Appeals wrote, “While some pejoratively refer to it as the first step in a ‘Texas Two-Step’ when followed by a bankruptcy filing, we more benignly call it a ‘divisional merger.’”
(If you think hard enough about “divisional merger,” it sounds like an oxymoron.)
4. tag jurisdiction. noun. A court’s exercise of personal jurisdiction over an individual who is served, and thus “tagged,” while physically present in the forum. That definition is from a 2022 decision by the U.S. District Court in the Southern District of New York, Sokolow v. Palestine Liberation Organization. Synonyms for tag jurisdiction that are more established terms are “transitory jurisdiction” and “transient jurisdiction.”
The U.S. Supreme Court used “tag jurisdiction” for the first time in 2023 in Mallory v. Norfolk Southern Railway Co. It also used “the tag rule” in the same case to mean tag jurisdiction. In 2021, Justice Neil Gorsuch, in a concurrence, used “tag rule” for the first time in any reported decision, Ford Motor Co. v. Montana Eighth Judicial District Court.
3. nuclear verdict. noun. 1. Damages awarded by jury exceeding $10 million. 2. Damages awarded by jury seen as excessive and disproportionate.
The term is pejorative and is used by entities, lawyers, and academics who excoriate tort lawyers. It appeared in, among other places, an end-of-2023 report by the American Tort Reform Foundation (ATRF) and a 2023 Supreme Court decision in a roundabout way: Justice Samuel Alito in Mallory, in his concurrence, in a footnote, quoted a law review article with “Nuclear Verdicts” in the title.
Another phrase appeared in the ATRF report and Justice Alito’s footnote in the same fashion (in a law review tittle): “litigation tourism.” ATRF seems to define it as judges “swinging open their courtroom doors to out-of-state plaintiffs.” This phrase may or may not catch on.
The next term is about explosions but not nuclear ones….
2. exploding offer. noun. Offer, such as a contract proposal, whose deadline is often short, such as hours or days, and sometimes immediate, before the offeror withdraws it.
While the term is not spanking new – a 1997 law review article discussed law reviews making exploding offers to article authors to keep them from journal-shopping – the term did, well, explode into the scene in 2023. Of the 12 judicial cases that have ever used the term, half of them were in 2023, Westlaw reports.
The six cases in 2023 came from the U.S. District Court for the Southern District of New York (three), the Delaware Court of Chancery (two), and the California Court of Appeal (one). Not all uses of “exploding offer” involve commercial contracts. The California case is about prosecutors’ offering plea deals to criminal defendants.
1. artificial intelligence and generative artificial intelligence.
Do these terms need definitions? If so, I rely on Merriam-Webster. The first is “the capability of computer systems or algorithms to imitate intelligent human behavior.” The second is “artificial intelligence that is capable of generating new content (such as images or text) in response to a submitted prompt (such as a query) by learning from a large reference database of examples.” Law and the world is being transformed. I don’t think that anyone has the words to adequately capture the importance of AI and generative AI.
One drawback to generative AI, at least now, is what are called “hallucinations”: generative AI makes up stuff. In June 2023 a federal judge in New York fined two lawyers and their law firm $5,000 for, among other related things, filing a brief generated by artificial intelligence with artificial cases. That’s the most prominent case of AI going rogue but there are others.
A “mutant citation” is the term that a federal judge in Michigan used in September 2023 to describe the apparent “blending [of] the case name of an existing Michigan state court case…with the reporter citation to an existing Fifth Circuit case.” We’ll see if “hallucinations” and “mutant citations” become legal terms. The real case in Michigan, not the mutant case, is Ruggierlo, Velardo, Burke, Reizen & Fox, P.C. v. Lancaster.
Meanwhile, former President Donald Trump continues to dominate, or at least influence, well, everything, it seems, including lists of legal phrases of the year, which is remarkable for someone who’s not a lawyer.
In 2016, the year that Trump won election to the White House, I named “adult children” as the notable legal phrase of the year because people were wondering and writing about the role that Trump’s offspring would play. I predicted (incorrectly) that “Emoluments Clause” might be a notable legal phrase of 2017 because Trump did not plan to put his business organizations into blind trusts.
“Unrecuse” was a notable legal term in 2018 because Trump tried to browbeat then-Attorney General Jeff Sessions the year before into retracting his recusal from overseeing Special Counsel Robert Mueller’s investigation.
The term “special purpose acquisition company (SPAC)” was in the news and was a notable legal term in 2021 because federal agencies were investigating a SPAC that was supposed to take Trump’s new media venture public. A SPAC is an alternative to traditional initial public offerings (IPOs).
In 2022, I wrote about “performative litigation,” calling it a catchy legal phrase that may or may not catch on. It arose in Trump’s civil suit against Hillary Clinton.
Also in 2022, I predicted incorrectly that the “Independent State Legislature doctrine” could be the most notable legal term of 2023. But the U.S. Supreme Court rejected the doctrine, which generally posited that state legislatures and not state courts may regulate congressional elections. The case was Moore v. Harper. The tie to Trump? “The independent state legislature doctrine was the centerpiece to Trump’s effort to overturn the 2020 election,” said J. Michael Luttig, a retired federal appellate judge in 2022.
Not on this year’s list of notable legal terms – but there’s always next year – is another phrase tied to Trump:
Disqualification Clause. noun. U.S. Constitution 14th Amendment, Section 3, which generally bars anyone who has engaged in insurrection or rebellion against the U.S. Constitution from holding federal or state office. Also called the “Insurrectionist Disqualification Clause” or “Insurrection Clause.”
The Fourteenth Amendment, of course is not new. Congress passed it in in 1866 and states ratified it in 1868. But how many people have paid attention to Section 3 since the aftermath of the Civil War? And because we had no reason to pay attention to Section 3 of the 14th Amendment, we didn’t need another more descriptive way to refer to it. Now Trump’s foes are using the Disqualification Clause to try to keep him off the ballot in various states.
On December 19, 2023, the Colorado Supreme Court basically barred Trump from the 2024 Republican primary ballot. Anderson v. Griswold. It used the term “Section Three.”
The terms “Disqualification Clause,” “Insurrectionist Disqualification Clause,” and “Insurrection Clause” have not exploded onto the legal writing scene, not in law review articles and not in court cases, at least not yet. As of this writing, journalists and anti-Trump activists are using the terms, but lawyers, judges, and law professors, not so much. We’ll see what legal writers write in 2024.