Legal Phrases to Look For in 2017

Ken Bresler
A version of this article appeared in Massachusetts Lawyers Weekly,
Rhode Island Lawyers Weekly, and The Daily Record (New York State),
January 27, 2017, and Detroit Legal News, January 30, 2017

I’ve written about the notable legal phrases of 2016. Here are legal phrases I expect you’ll see in 2017.

Doxxing, doxing. verb, noun. Releasing, on the internet and through social media, information about a person that is often personal or hard to obtain, such as home address, cell phone number, or children’s photographs, for reasons including harassment, extortion, intimidation, shaming, and countersurveillance. The information is collected through diligent internet and social media searches, or hacking. [dox = short for “documents]

That’s my definition. “Doxxing” and “doxing” have made it into a few legal articles but not really into cases yet. The phenomenon may or may not generate private litigation or legislative responses.

The preferred spelling seems to be “doxxing.” Even if it doesn’t become a legal word, it is probably already an English word, and one of the first English words with two consecutive x’s that is not a proper noun. (“Exxon-Mobil” and “Foxx,” for example, are proper nouns). The word “anti-vaxxer” may have beat “doxxing” as the first double-x word.

Lennie standard. The U.S. Supreme Court will be deciding in 2017 whether Texas may constitutionally execute mentally retarded murderers using a standard based on Lennie, a fictitious mentally retarded character in Of Mice and Men, John Steinbeck’s novel.

Well, actually not. Texas doesn’t have such a standard.

But many journalists and commentators reported otherwise in 2016. And you’ll probably hear about the “Lennie standard” in 2017 from journalists after the Supreme Court hands down a decision.

Here the story behind the overblown Lennie standard. In 2004, the Texas Court of Criminal Appeals, which is the state’s highest court for criminal cases, wrote about Lennie in passing: “We…must define that level and degree of mental retardation at which a consensus of Texas citizens would agree that a person should be exempted from the death penalty. Most Texas citizens might agree that Steinbeck’s Lennie [footnote citing Of Mice and Men omitted] should, by virtue of his lack of reasoning ability and adaptive skills, be exempt. But, does a consensus of Texas citizens agree that all persons who might legitimately qualify for assistance under the social services definition of mental retardation be exempt from an otherwise constitutional penalty?”

The paragraph continues, but I recommend that you only skim the rest: “Put another way, is there a national or Texas consensus that all of those persons whom the mental health profession might diagnose as meeting the criteria for mental retardation are automatically less morally culpable than those who just barely miss meeting those criteria? Is there, and should there be, a ‘mental retardation’ bright-line exemption from our state’s maximum statutory punishment?” Ex parte Briseno, 135 S.W.3d 1, 6 (Tex. Crim. App. 2004).

See? The reference to Lennie was in passing. I could have shortened the quotation, but I wanted to show you the larger context.

Two pages later, the case listed seven factors in assessing mental retardation (and I recommend that you skim these):

• • Did those who knew the person best during the developmental stage – his family, friends, teachers, employers, authorities – think he was mentally retarded at that time, and, if so, act in accordance with that determination?
  • Has the person formulated plans and carried them through or is his conduct impulsive?
  • Does his conduct show leadership or does it show that he is led around by others?
  • Is his conduct in response to external stimuli rational and appropriate, regardless of whether it is socially acceptable?
  • Does he respond coherently, rationally, and on point to oral or written questions or do his responses wander from subject to subject?
  • Can the person hide facts or lie effectively in his own or others’ interests?
  • Putting aside any heinousness or gruesomeness surrounding the capital offense, did the commission of that offense require forethought, planning, and complex execution of purpose?”

Id. at 8-9.

The Briseno court did not tie these seven factors to Lennie. There is no evidence, not even an implication from Briseno’s structure, that Texas adopted the factors based on Lennie. It’s not as if Texas calls it the Lennie standard. These factors were labeled “the Lennie standard” years later, but the term “Briseno factors” or “Briseno standard” is more accurate.

The term “Lennie standard” seems to have emerged recently, in the dissent to a 2015 case. Ex Parte Bobby James Moore, 470 S.W.3d 481, 539 (Tex. Crim. App. 2015)(Alcala, J., dissenting). More on Moore….

After losing his appeal in Texas, Moore, a condemned murderer, petitioned the U.S. Supreme Court for certiorari in December 2015, challenging his sentencing under Briseno. A footnote in the brief mentioned the Lennie standard in passing. Texas’s opposition brief to the cert petition did not mention Lennie or the Lennie standard. Moore’s reply brief did not mention Lennie or the Lennie standard. Six amicus curiae briefs filed in support of the cert petition did not mention Lennie or the Lennie standard.

The U.S. Supreme Court accepted the case, Bobby James Moore v. State of Texas, No. 15-797, and when Moore filed his brief on the merits in July 2016, it mentioned Lennie 11 times, including an assertion that the Lennie standard played a “prominent role” in Briseno. Yes, I know that parties sometimes shift their emphasis and refine their arguments between cert briefs and briefs on the merits, but that’s not my point. My point is that one can argue against the death penalty and against executing mentally retarded people without pretending that an aside about Lennie has the force of law.

The case was argued on November 29, 2016. Moore’s lawyer did not discuss the Lennie standard. Texas’s lawyer fielded a few questions about it, trying to dispel the bogus issue.

We’ll see if the Supreme Court discusses the Lennie standard in its decision or ignores it.

Did Steinbeck ever write a novel Of Mountains and Molehills?

Emoluments Clause. I predict that the most notable legal phrase of 2017 will be “the Emoluments Clause.” I’m sure you’ve read about it. But have you read it lately? Here it is, right after the Title of Nobility Clause, which I’ve kept for context:

“No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.”

Black’s Law Dictionary defines “emolument” as “Any advantage, profit, or gain received as a result of one’s employment or one’s holding of office.” The dictionary notes that the word is usually used in the plural.

The Constitution itself provides a synonym for “emolument” in Article II, section 1, clause 7, which is sometimes called the Compensation Clause. It states: “The President shall…receive for his Services, a Compensation, which shall neither be increased nor diminished during the Period for which he shall have been elected, and he shall not receive …any other Emolument from the United States, or any of them.” Thus, “Emolument” generally is “Compensation.”

Shortly after the election, scholars and commentators began discussing whether the business deals of President Trump’s entities with foreign governments, or entities owned by foreign governments – even a foreign official staying in a hotel that President Trump owns or has a business interest in – would generate emoluments to him, and thus a potential violation of the Emoluments Clause. Shortly after the inauguration, two groups announced separate litigation plans: scholars and ethics lawyers filed suit under the Emoluments Clause on behalf of Citizens for Responsibility and Ethics, and the American Civil Liberties said it would sue if it can find a hotel that competes with a Trump hotel to serve as a plaintiff.

You won’t find the Emoluments Clause in Article II, which is about the Executive Branch. It’s in Article I, which is about the Legislative Branch. That doesn’t mean the Emoluments Clause applies only to Congress; it does say “any Office” of the United States. It’s in section 9; it’s the eighth clause, the last one.

Notice that when the U.S. Constitution was written in the late 18th century, the phrase “United States” was plural. Hence, the reference in the Emoluments Clause to “any Office of Profit or Trust under them.” And the Compensation Clause allows a president to receive only “Compensation” and not “any other Emolument from the United States, or any of them.” In other words, individual states can’t compensate the U.S. president.

Wait! There are two Emoluments Clauses. The U.S. Constitution, you’ll recall, does not name its clauses. Judges and scholars have done so. The other Emoluments Clause is Article 1, section 6, clause 2: “No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been increased during such time….”

This other Emoluments Clause is not potentially about President Trump. It bars a U.S. senator or representative from voting to increase the salary for a federal office and then filling it.

The two Emoluments Clauses make it harder to research either of them. Search for one and you’ll get cases and articles on both.

How to distinguish the two? Refer to one provision as “the Emolument Clause” in the singular, and the other as “the Emoluments Clause” in the plural, tracking their actual language? No, too hard to remember.

Refer to the Emoluments Clause (the one barring senators and representatives from filling offices whose salaries they’ve voted to increase) as “the Sinecure Clause”? That is an alternative name, but it’s very obscure.

Better to use another existing name for the other Emoluments Clause (the one about “any King, Prince, or foreign State”), a more specific name: the Foreign Emoluments Clause.

And let’s be practical, because legal writing entails practicality, not just rules. Almost all mentions of the Emoluments Clause in 2017 will be about the Foreign Emoluments Clause. There won’t be much confusion between the clauses.

Compensation Clause. So far, attention has focused on the possibility that foreign officials staying in a Trump hotel would violate the Emoluments Clause. But if state officials traveled to Washington, D.C. and stayed in the Trump International Hotel there, would the president be receiving an emolument from a state, in apparent violation of the Compensation Clause? If a state agency rented space from a Trump entity, would the president be receiving an emolument from a state?

If President Trump receives profits from the Trump International Hotel, which leases the former Old Post Office from the U.S. Government, is he receiving an emolument from the U.S. other than his salary?

If a federal agency holds a conference in the Trump International Hotel, or a federal employee from outside Washington, D.C. stays there on official business, would the president receive an emolument from the U.S. other than his salary?

The Emoluments Clause has hoarded the attention so far. But the Compensation Clause could be a runner-up notable legal phrase of 2017.

Clarifications/corrections/update:

•The litigation filed by the Citizens for Responsibility and Ethics includes a Compensation Clause claim.

• What I’ve called the Compensation Clause is also called, and probably better known as, the Presidential Compensation Clause. It’s also called the Domestic Emoluments Clause.

• That means that the U.S. Constitution has three Emoluments Clauses, not two as I have written: the Foreign Emoluments Clause, the Domestic Emoluments Clause, and, Article 1, section 6, clause 2, which I discuss above, and which is sometimes called the Congressional Emoluments Clause.

• The Supreme Court did not mention the Lennie standard when it decided Moore v. Texas, 137 S.Ct. 1039 (2017).