What a difference a year makes.
Last year was a big one for new legal terms and for COVID-19. I named “mask mandate,” “vaccine passport” and “vaccine mandate” as the third, second and first most notable legal terms of 2021. Now no one is talking or writing about these mandates or passports.
As in previous years, the most notable legal phrases of 2022 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.
For an example of a phrase too new to gauge its significance, consider “pen-and-phone regulations.” It has been used only once in a reported decision. It appeared in U.S. Supreme Court Justice Neil M. Gorsuch’s concurring opinion in West Virginia v. EPA on June 30, 2022. While it is unclear exactly what Gorsuch meant, I define a pen-and-phone regulation as a “regulation or policy unauthorized by statute, or otherwise illegitimate.”
Let’s see if Gorsuch uses the phrase again in 2023 in another administrative law case, U.S. v. Texas, this one about immigration policy. Let’s see if the phrase catches on.
For another example of a catchy legal phrase that may or may not stick, consider “performative litigation.” U.S. District Court Judge Donald M. Middlebrooks used it on Nov. 10, 2022, in his order granting motion for sanctions in a civil suit by former President Donald Trump in the Southern District of Florida. (See Trump v. Clinton, et al.) Middlebrooks wrote that “the courts are not intended for performative litigation for purposes of fundraising and political statements.”
Now, “performative” does have a legal meaning, but Middlebrooks was not using it that way. The American Heritage Dictionary of the English Language defines the word as follows:
“Relating to or being an utterance that performs an act or creates a state of affairs by the fact of its being uttered under appropriate or conventional circumstances, as a justice of the peace uttering I now pronounce you husband and wife at a wedding ceremony, thus creating a legal union, or as one uttering I promise, thus performing the act of promising.”
For you aficionados of words and grammar who want to know more, “performative” (a word about words) is in contrast to “constative,” Merriam-Webster’s Dictionary tells us. “Constative” means “being or relating to an utterance (such as an assertion, question or command) that is capable of being judged true or false.”
No, Middlebrooks was not using “performative” in the sense of “I now pronounce you spouses” or “I promise” or a jury foreperson announcing “Guilty,” a declaration that transforms a defendant’s status to guilty.
Rather, the judge was almost certainly using it in the sense that became prominent in 2020 during the racial reckoning in the aftermath of George Floyd’s murder by Minneapolis police officers. People began speaking and writing about “performative activism” and “performative allyship.” The terms are pejorative. They refer to people making comments and gestures supporting social justice and allying with oppressed people without doing the hard work of transforming society and power structures.
Thus, I take “performative litigation” to mean lawsuits whose purpose is to take a combative stance, not to achieve results in court. We will see whether this phenomenon and the term to describe it continue. In the meantime, “performative litigation” is not yet and may not become a notable legal term of the year.
2022’s most notable legal terms
Now for 2022’s most notable legal terms. The criteria, as in past years, is that the terms are fairly new, made news and are not in Black’s Law Dictionary.
The U.S. Supreme Court case that gave us “pen-and-phone regulations,” West Virginia v. EPA, also gave us the second most notable legal term of 2022: “major questions doctrine.” I define it as the “doctrine that a federal administrative agency must rely on clear congressional authorization for the authority it claims.” In that case, the court curtailed the EPA’s authority to regulate greenhouse gases.
Justice Elena Kagan stated in her dissent: “The Court has never even used the term ‘major questions doctrine’ before.”
Well, that’s strictly true. Gorsuch used “major questions doctrine” in his dissent in Gundy v. U.S., a 2019 case. He also used it — eight times — in his concurrence in National Federation of Independent Business v. OSHA, a 2022 case on application for stays.
The term has not appeared in a Supreme Court majority opinion, but it has appeared in other appellate decisions and academic articles.
As for the most notable legal term of the year, it is “trigger law.”
In 2021, I defined “trigger law” as: “Contingent state law generally banning abortions that will become effective — be triggered — if the Supreme Court overturns or curtails Roe v. Wade, which protects a woman’s constitutional right to decide whether to abort a pregnancy.”
That happened on June 24, 2022. The U.S. Supreme Court overruled Roe in Dobbs v. Jackson Women’s Health Organization. Trigger laws in 13 states, by one count, went into effect, generally illegalizing abortions or beginning the process of illegalizing them. The states: Arkansas, Idaho, Kentucky, Louisiana, Mississippi, Missouri, North Dakota, Oklahoma, South Dakota, Tennessee, Texas, Utah and Wyoming.
A year ago, I predicted that the most notable legal term of 2022 could be “trigger law.” I don’t congratulate myself for having done so. One did not need to have been a prescient prognosticator to have realized that “trigger law” was going to be newsworthy.
In addition, I’m the one who predicted the notable legal term of the coming year, and then picked it a year later, so the accuracy of my prediction was riggable.
My next prediction has to do with the case that the Supreme Court heard on Dec. 7, 2022, Moore v. Harper, which is about the Elections Clause in the U.S. Constitution. The clause reads: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations ….” It’s also called the Times, Places and Manner Clause.
Central to Moore v. Harper is the Independent State Legislature theory, which generally posits that state legislatures and not state courts may regulate congressional elections. If the court adopts the theory, it could become the Independent State Legislature doctrine, no longer a theory.
And the most notable legal phrase in 2023 could be the “Independent State Legislature doctrine.”
Ken Bresler writes about legal writing and plain language on www.ClearWriting.com, where he maintains Bresler’s Law Dictionary, terms that do not appear in Black’s.