Law is full of legal terms of art that are used to express a specific thing or idea in a legal context. While some may dismiss legal language as “legalese,” the words that lawyers and legal scholars use when talking about law are important because they communicate specific legal concepts, rather than general ideas.
Take, for example, a word like fraud. According to the Merriam-Webster dictionary, fraud is an “intentional perversion of truth in order to induce another to part with something of value or to surrender a legal right” or, more generally, “an act of deceiving or misrepresenting.”
A person can also be a fraud (suggested synonym: impostor).
If you look up the word “fraud” in a legal dictionary, the basic definition is largely the same. However, that is not the end of the story.
The definition of “fraud” in the Bouvier Law Dictionary that sits on my desk is quite a bit longer than the Merriam-Webster definition. According to Bouvier, a fraud can be “actual” (“affirmative statement of misrepresentation”) or “constructive” (when the actor, knowing that it will be relied upon by someone to his or her detriment, “conceals a fact or is silent regarding it”). Fraud can be a criminal action, and it can also void a contract.
That said, not everything that people may think is “fraud” actually is. According to Bouvier, “a statement that is too outlandish to be reasonably believed, one that requires illegal conduct in order to rely upon it, or one that is too general to be the basis for specific reliance may not be fraudulent.”
So, before a (good, responsible) lawyer tosses around a term like “fraud” or “fraudulent” to describe an action or a person, he or she should probably double-check its legal definition, especially since the use of that word may have legal implications in both civil and criminal contexts. Because language is important to lawyers and legal scholars, we should know where to look up legal terms of art to make sure that we understand and are using them correctly. The law library has a lot of resources for this type of research.
Legal dictionaries like the Bouvier Law Dictionary described above provide legal definitions of words and phrases. Both the Westlaw and Lexis Advance subscription databases include legal dictionaries in their collections. One of the most well-known American legal dictionaries, Black’s Law Dictionary, is available through Westlaw. To access it, in the Westlaw home screen’s search box, start typing “Black’s Law Dictionary” and select it from the drop-down menu that appears below the search box.
Harvard’s libraries have more than 600 titles that are classified as legal dictionaries that were published in 2000 or later. To view a list of them, run this HOLLIS search: subject = law AND dictionaries; date limit = 2000-2018; location limit = in library.
You will see, when you run this search, that many of the dictionaries are not in English. Some of them are exclusively in another language, while others are multilingual legal dictionaries, which provide translations of legal terms.
Tip: Even if you were a ______ (language) major in college, you might not know what a __________ word means when it is used in a legal context. It is also not a good idea to blindly trust Google Translate to get it right. If you want to be sure of its legal meaning, take the time to look it up in a legal dictionary.
While legal dictionaries are great for basic definitions, what if you need just a little bit more information — maybe not as long as a book or an article, but just a few more paragraphs to provide additional context? This is the role that legal encyclopedias were created to fill.
Two well-known American legal encyclopedias are American Jurisprudence and Corpus Juris Secundum. The law library has both of these encyclopedia sets in print in the main reading room; however, they have not been updated in a few years. Fully updated versions of both are available electronically through Westlaw.
Legal encyclopedias can focus on a narrow area of law, or be quite broad. They are published in many jurisdictions and languages. Some are multidisciplinary, such as the Oxford Encyclopedia of the Bible and Law, which is available in the Harvard Divinity School Library’s reference collection.
To view a list of the more than 200 legal encyclopedias in the Harvard libraries’ collections that have been published since 2000, run this HOLLIS search: subject = law AND encyclopedias, date limit = 2000-2018; location limit = in library.
Finally, a little story. Right before I quit my former job to go to law school, the lawyer I worked for gave me a copy of Black’s Law Dictionary as a gift. I didn’t know what to make of it at the time. Now, however, I see the thoughtfulness of that choice. He knew how important words are to lawyers, and that we must have the tools we need to make sure we’re using those words correctly.
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Jonathan Zittrain
Administrative Law Research: The Department of Education’s Proposed Title IX Rule
Filed under: Announcements, Government Information, Legal Research & Research Skills
On November 16, 2018, a press release was issued by the U.S. Department of Education announcing a proposed new rule related to Title IX. The press release includes links to the proposed rule in its entirety, as well as a one-page summary and a section-by-section summary.
Title IX is a federal law under which sex-based discrimination is prohibited in educational institutions that receive federal funding. This law is codified under 20 U.S.C. §§ 1681-1688. Any federal agency that “extend(s) Federal financial assistance to any education program or activity” is authorized to promulgate rues and regulations related to Title IX enforcement (20 U.S.C. § 1682).
The new rule has been crafted to incorporate what the Department of Education views as additional due process and fairness protections for parties who are involved in Title IX complaints in schools. These include the introduction of hearings in which people who testify can be subject to cross-examination. It also seeks to clarify the definition of sexual harassment in a Title IX context, and to specify when a school is and is not required to investigate alleged incidents of sexual harassment.
The federal Administrative Procedure Act requires, with certain exceptions, that federal agencies use a notice and comment rulemaking process when creating new federal rules and regulations. This section of that federal statute has been codified at 5 U.S.C. § 553. In accordance with this requirement, the Department of Education issued a notice in the Federal Register of its intent to promulgate its new Title IX rule, and invited the public to make comments on it. This notice was published on November 29, 2018, and can be found at 83 Fed. Reg. 61432.
The online venue for submitting public comments for many federal regulations is the government’s regulations.gov website. Since this proposed rule was posted to this site, under the document number ED-2018-OCR-0064-0001, there have been nearly 100,000 comments submitted. Today, on the final day of the comment period, three members of the Harvard Law School faculty, Professor Jeannie Suk Gersen, Judge Nancy Gertner, and Professor Janet Halley added their voices to this conversation, and submitted a detailed comment on the proposed rule. They have made this comment available for public view at https://perma.cc/3F9K-PZSB.
In their comment, these faculty members, “who have researched, taught, and written, on Title IX, sexual harassment, sexual assault, and feminist legal reform,” outline the aspects of the proposed rule with which they agree and those with which they disagree. Among their concerns are the proposed cross-examination mechanism for Title IX hearings. They also object the proposed rule’s definition of the “deliberate indifference” standard used to determine a school’s legal obligation to respond to sexual harassment. Additionally, they believe that the rule should mandate that sexual harassment claim inquiries focus on the “threat of harm” and consider the interests of both complainants and respondents.
As they mentioned, all three authors of this comment have written on the topic before. Professor Halley published a 2015 article about Title IX in the Harvard Law Review Forum, Trading the Megaphone for the Gavel in Title IX Enforcement. Professor Suk Gersen published “Betsy DeVos, Title IX, and the ‘Both Sides’ Approach to Sexual Assault” in the New Yorker in 2017. A piece by Judge Gertner, “Sex, Lies and Justice: Can We Reconcile the Belated Attention to Rape on Campus with Due Process?” appeared in the American Prospect in 2015.
The collections of the Harvard Library include a number of books and journals about topics related to Title IX, such gender discrimination in educational settings (HOLLIS library catalog search) and sexual harassment in educational settings (HOLLIS library catalog search). For more information about the notice and comment rulemaking process, run this HOLLIS library catalog search to view a list of books that discuss the Administrative Procedure Act.
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