The referenced weblog entry

AKMA writes, "I really, really dislike the use of ‘reference’ as a verb."

So do I. I'd probably use even stronger terms. But I've seen it all the time — I'll even admit, hanging my head in shame, that I have used the word "reference" as both a verb and a verb-derived adjective. That usage seems to be idiomatic in legal work, at least in Denver. I have regularly seen letters that bore a case name and number as the subject line and then began, "I write in regard to discovery in the referenced litigation." Ugh. Ugh!

Abuses of the English language abound in law. I'm not talking about technical terms or jargon; those are deviations from ordinary speech that have meanings developed through years of court cases and customary usage. I mean, for example, the use of the idiomatic phrase "the instant [noun]" to mean "this [noun]." I've seen this most often in pleadings, where the author would use the phrase "the instant litigation" to mean "this case." The only argument I can envision in favor of this usage is that "the instant litigation," is a shorter, simpler form of "the above-captioned litigation" or "the above-referenced litigation." So apparently it's a bad alternative to a worse option.

What on earth is wrong with just saying, "this case," or "this litigation?"

Some archaic idioms, born out of the Norman conquest, are causing confusion and litigation in American law even today. An Ohio Court of Appeals had to sort out whether "clear title" is any different from "free and clear title." (Here's the opinion [Warning: It's a MS Word file]. Here's an excerpt:

III. The Normans Strike Again

Monfort contends, "Although a ‘clear title’ is one that is not subject to any restrictions, the case at bar involved a ‘free and clear’ title, which is the same as a marketable title." So, according to Monfort, a free and clear title is worse than a clear title. Say what?

Would that Harold had not lost the Battle of Hastings.

Free and clear mean the same thing. Using both is an unnecessary lawyerism. Free is English; clear is from the French clere. After the Norman Conquest, English courts were held in French. The Normans were originally Vikings, but after they conquered the region of Normandy, they became French; then they took over England. But most people in England, surprisingly enough, still spoke English. So lawyers started using two words for one and forgot to stop for the last nine hundred years.

So free and clear do not mean separate things; they mean, and were always meant to mean, exactly the same thing. Just as null and void and due and payable mean the same thing. All of these couplets are redundant and irritating lawyerisms. And they invite just what has happened here—an assertion that they somehow have different meanings.

The Norman Conquest was in 1066. We can safely eliminate the couplets now. . . .

(Thanks to Eugene Volokh and one of his readers for noticing the case.)