The Holy Roman Empire, Actual Malice, and Criminal Conversation

March 26, 2024   |   Tags:

The Holy Roman Empire, it was famously put (by Voltaire, I think), was neither Holy, nor Roman, nor an Empire. Likewise, the First Amendment "actual malice" test isn't actually about malice, but rather about whether the speaker knew the statement was false or likely false (and indeed the Court has had to make clear that actual malice in the English sense of ill will or hostility doesn't suffice). And "criminal conversation" was (and in a few jurisdictions still is) a tort, not a crime, and it focuses on illicit sex, not conversation in the modern English sense of the word.

Hence this question: Are there other legalese phrases of two or more words, in which the modern English sense of every one of the words (perhaps excluding articles and prepositions) does not actually correspond to the legal term? To be sure, plenty of legal phrases involve meanings that go beyond the English words ("freedom of speech" may cover communication that wouldn't normally be labeled "speech," such as handwriting, flag waving, flag burning, and the like). Likewise, plenty aren't understood as being composed of English words at all (such as "res judicata" or "habeas corpus"). But I'm looking here for phrases that do use ordinary English words but use them in a sense quite different from the modern English meaning of each word.

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