COMMENTARY: 'Unrecuse' among 2018 most notable legal terms

By Ken Bresler
BridgeTower Media Newswires
 
DETROIT—The most notable legal phrases of 2018 weren’t coined in 2018. If they had been, it probably would be too soon to have noticed them and too soon to gauge their impact, longevity and usefulness.

What makes for a notable phrase of the year? They’ve made the news and are fairly new (or are newly prominent) and are not in Black’s Law Dictionary.

Not included in this list are some legal phrases that are not in Black’s Law Dictionary but have been around for a while. I’ve included “net neutrality” and “cryptocurrency” in my online Bresler’s Law Dictionary, but not on this list.

President Donald Trump continues to influence everything, including legal terminology.

Even before he took office, I named “adult children” as the most notable legal term of 2016, based on the prevalence of news reports about his grown offspring’s doings and prospective doings in business, politics and government.

The most notable legal term of 2017 grew out of the Trump administration’s immigration policies: “sanctuary city,” with an accompanying discussion of “Deferred Action for Childhood Arrivals” — or DACA — and “Dreamers.”

This year’s list of notable legal terms has two that became prominent because of Trump, one related to immigration policy.
Sex-related terms have often made my lists. In 2014, there was “sexsomnia” and “revenge porn law.” In 2016, there was “sextortion”; in 2017, “slut-shaming.” In 2018? None.

Here are my picks and definitions of the most notable legal phrases of 2018:

Dark money. noun. Money, spent to influence an election, whose donors are undisclosed, such as money spent by certain nonprofit groups that can receive unlimited donations from corporations, unions and individuals without identifying them.

One reason that the term hit the news in 2018 was a documentary by that name.

Magnitsky Act. noun. 1. Global Magnitsky Human Rights Accountability Act, also called Global Magnitsky Act (GMA), passed in 2016, which authorizes financial sanctions and visa restrictions against foreign individuals and entities that have violated human rights and acted corruptly. Pub. L. 114-328, Subtitle F. Named for Sergei Magnitsky, a Russian lawyer who died in a Moscow prison in 2009 after exposing a tax scam involving Russian officials. 2.

Less frequently, a predecessor statute, Russia and Moldova Jackson-Vanik Repeal and Sergei Magnitsky Rule of Law Accountability Act of 2012, passed in 2012, which sought to punish Russian officials blamed for Magnitsky’s death, by barring them from the U.S. and its banking system. Pub. L. No. 112-208, 126 Stat. 1496.

Some senators are pushing for the act to be used against Saudi officials after the killing of Saudi journalist Jamal Khashoggi. The term made it into a reported decision (Westlaw), probably for the first time: Deposit Insurance Agency v. Leontiev, No. 17-MC-00414 (GBD)(SN) (S.D. N.Y. July 23, 2018).

Telephone justice. noun. Practice of power-holders, such as government or party officials, in countries with a weak rule of law to telephone judges to instruct them how to act and rule. This term seems to arise most often in Russia. Thank heavens America has a stronger rule of law.

Nationwide injunction, universal injunction. noun. Injunction by a U.S. District Court barring the federal government from acting against anyone in the U.S., not only the plaintiffs.

Justice Clarence Thomas questioned the legitimacy of such injunctions in his concurrence to Trump v. Hawaii, the so-called Muslim travel ban case. The U.S. Supreme Court decided the case on June 26, 2018.

Diversity rider. noun. Contract provision for a film performer, usually a star, requiring that cast and people in off-screen positions include a certain number or percentage of women, people of color, and lesbian, gay, bisexual or transgender people.

Actress Frances McDormand inserted the term into nationwide consciousness when she won the Oscar for best actress on March 4, 2018. At the end of her acceptance speech, she said, “I have two words for you: inclusion rider.”

Unrecuse. noun. To rescind a recusal. In March 2017, President Trump tried to browbeat then-Attorney General Jeff Sessions into unrecusing himself from overseeing special counsel Robert Mueller’s investigation. The New York Times reported that on May 29, 2018. (Ironically, The Times reported that Trump’s pressure had become a subject of Mueller’s investigation.)

In an early mention of this term, the U.S. District Court for the Southern District of New York used it in 1993. Keeton v. American Telephone and Telegraph Co., 836 F. Supp. 171, 181 (S.D. N.Y. 1993). The court wrote about the 4th Circuit “mandamusing a district judge to unrecuse himself.” (I didn’t know that “mandamus” is a verb, but Black’s confirms that it is.)

No-nup. noun. Written agreement between cohabitators, who may contemplate future marriage or may have decided against it, detailing rights and obligations during and after cohabitation. [no-nup[tial], as opposed to pre-nuptial or post-nuptial agreement]
First you could get a pre-nup or a post-nup. Now that we’ve possibly entered the Post-Pre-Nup Age, yup, you can get a no-nup.

For the most notable legal phrase of 2018, I have three words for you:

Red flag law. noun. State statute allowing law enforcement officers to seize firearms from someone a judge has ruled is dangerous — a person whose behavior and statements constitute red flags of warning.

Eight states enacted red flag laws in 2018, following the shooting deaths of 17 people at the Stoneman Douglas High School in Parkland, Florida, on Feb. 14, 2018. Five states had them before the shooting. Other states are considering them.
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Ken Bresler tweets about new legal terms at @LawWritingCoach. Bresler’s Law Dictionary appears at www.ClearWriting.com/dictionary.