New Legalese: You may have heard a deepfake, but what about 'Twiqbal'?
Bryan A. Garner. Photo by Winn Fuqua Photography.
As chief editor of Black’s Law Dictionary, I’m responsible for marshaling and defining legal terminology—both old and new. On the one hand, my team and I have beefed up the coverage of historical terms. On the other, we’ve kept up with the neologisms that come up year by year. Before a term gets recorded in Black’s or any other reputable dictionary, it must prove itself: It must be extensively used or gain real notoriety. We don’t give admission to newly minted words or phrases that haven’t yet come into widespread use.
Since 2014, we’ve given dates for terms to show when they entered the English vocabulary. Our specialist for dating terms is Fred Shapiro, an eminent librarian at the Yale Law Library. For years, he has specialized in finding earliest known citations of words and phrases. When we first introduced this feature, I suspected we might be deluged with mail suggesting earlier dates for terms. To date, I’ve received only two such letters.
Because Shapiro recently finished a batch of datings for me, many of them from this century, I thought I’d share some of the more recent terms here. In many ways, the new legal vocabulary reflects the time in which we live. As you look through the terms that have arisen over the last 24 years, you’ll see much of our recent history. Mind you, I’ve chosen the more interesting one from each year.
2000
fickle-fiduciary rule. The principle that a partner or employee who breaches a fiduciary duty should forfeit all compensation, bonuses and other benefits received after and during the breach.
2001
reverse bear hug. A maneuver by which a takeover target responds to a bidder’s offer by showing a willingness to negotiate but demanding a much higher price than that offered.
2002
antispamming law. A statute enacted to combat or criminalize the sending of unsolicited commercial email.
2003
hot-tubbing. Slang. The practice of having expert witnesses testify as a panel rather than one by one, answering questions in each other’s presence.
2004
CSI effect. Slang. The supposed influence of the television show CSI: Crime Scene Investigation in leading jurors to expect quick and definitive analysis and resolution of all crime-scene issues.
2005
birth tourism. The practice of traveling from one country to another ostensibly as a tourist but actually to bestow natural-born citizenship on a child born within the borders of a country that recognizes birthright citizenship.
2006
stand-your-ground law. A statute providing that a potential victim of a crime need not retreat before responding with force in self-defense, even if flight is possible.
2007
revenge pornography. Sexually explicit photos or videos of someone distributed without the person’s consent for an improper purpose such as punishment for ending a relationship or coercion to continue the relationship.
2008
pump-and-dump scam. Securities. A fraudulent scheme or practice whereby unscrupulous stockholders excite interest in a stock, luring new (usually unsophisticated) investors to artificially drive up the price before the original stockholders sell their holdings at a grossly inflated price, thereby ultimately causing the stock’s price to plunge or collapse.
2009
Twiqbal. [portmanteau for Twombly + Iqbal] Civil procedure. Slang. Collectively, the two decisions of the U.S. Supreme Court that made it more difficult for plaintiffs to bring suit in federal court by requiring them to demonstrate the plausibility of their claims as opposed to merely describing the facts with enough detail to put the defendant on notice. Bell Atlantic Corp. v. Twombly (2007); Ashcroft v. Iqbal (2009).
2010
preglimony. [portmanteau for pregnancy + alimony.] Slang. Financial support paid by the biological father to a pregnant woman carrying his child to cover some of her pregnancy-related expenses.
2011
doxing. The nonconsensual online posting of someone’s personal information, such as home address, email address and place of employment, especially for purposes of harassment.
2012
zombie asset. A physical or intangible asset, such as a building or stock, that underperforms or fails to produce a significant return on investment over a substantial period of time.
2013
DWOP docket. A list of cases that the court has set for possible dismissal for want of prosecution.
2014
white-heart–empty-head rule. Criminal law. Slang. The doctrine that a defendant cannot avoid complicity in a crime by willfully ignoring the probability of an associate’s ongoing criminal activity.
2015
shadow docket. The list of orders issued by the U.S. Supreme Court in cases that have not been argued on the merits.
2016
sex-offender post-release law. A statute imposing, often for life, one or more affirmative obligations on formerly incarcerated sex offenders, such as registering with and periodically reporting to law enforcement, wearing a GPS monitor and paying periodic fees.
2017
no-poach provision. A franchise-contract term barring the franchise owner from hiring applicants who have worked for other franchises within the same company chain.
2018
deepfake. [portmanteau of deep learning + fake.] A false video, audio recording or other medium that is generated or manipulated by computer, often using artificial intelligence, with the intent to deceive viewers or listeners.
2019
ghost gun. A homemade or self-assembled functional firearm with no recognized serial number.
2020
common-good originalism. A theory positing that the words of a legal instrument should be given a meaning that has developed through experience rather than the meaning that the words bore when adopted, and that their interpretation should account for such experience and development.
2021
Nothing in our files, oddly enough.
2022
surveillance-device warrant. A warrant authorizing the use of advanced equipment to record, observe or monitor someone.
2023
Red Flags Rule. A Federal Trade Commission regulation requiring businesses and organizations to create and implement programs to detect the warning signs of identity theft in their day-to-day operations.
Who knows what the coming years hold in store? We’ll soon find out.
As for the newer terms not yet in Black’s Law Dictionary, they’ll be included in the forthcoming 12th edition.
Bryan A. Garner is the president of LawProse Inc., the chief editor of Black’s Law Dictionary, the author of The Winning Brief and Legal Writing in Plain English, and distinguished research professor of law at Southern Methodist University Dedman School of Law.
This column reflects the opinions of the author and not necessarily the views of the ABA Journal—or the American Bar Association.
