Tony Mauro at Legal Times alerted people last week to this exchange at oral argument:
MS. SAHARSKY [of the Solicitor General’s office]: What I’m suggesting, Your Honor, is that the “that” refers to everything that is in Romanette (i) and (ii) up to the break with “committed by.” So that it is an offense that is a misdemeanor and has as an element “committed by.” You know, these — these two different clauses both modify “offense,” just as a grammatical matter, not looking at this Romanette (i) and (ii), but just looking at that sentence.
CHIEF JUSTICE ROBERTS: Romanette?
MS. SAHARSKY: Oh, little Roman numeral.
CHIEF JUSTICE ROBERTS: I’ve never heard that before. That’s — Romanette.
A lawyer teaching a Justice a new word at oral argument is rare, partly because the Justices know pretty much all the words they need to know, and partly because no lawyer wants to either confuse a Justice or be seen as showing off. So I suspect that Ms. Saharsky used the word entirely without thinking about it: To her, it was quite normal, though to the Chief Justice it was unknown (as it was to me and to some other lawyers I’ve talked to).
So what’s going on? The word is in no dictionary that I could find. It appears in no Nexis-searchable publication. A Google search for “Romanette” in English-language pages revealed fewer than 35 pages that used the word before Monday, once all the false positives (the names of people, horses, green bean varieties, blinds, and the like) were removed.
And yet the word, with precisely the meaning Ms. Saharasky used, appears in six court opinions, from federal court in Oklahoma, bankruptcy courts in Texas and Pennsylvania, and state courts in Minnesota, plus ten sources in Westlaw’s TP-ALL database (all in practitioner journals, not in traditional law reviews). And the Google hits — mostly from legal documents — come from a similarly wide range of sources: the minutes of a Novato, California City Council meeting, a manual of contract drafting, a transcript of an Idaho Senate commitee meeting, and more. What’s more, all but a few use the word as matter-of-factly as Ms. Saharasky did, without any indication that the word is anything novel and unusual; the remaining ones are queries about what the word means or brief discussions of its meaning.
The earliest source I could find is this 1993 book on Corporate Internal Investigations; apparently the word seemed commonplace to the author even then. Most of the sources are from the last five years, but some go back to the 1990s. And I suspect that the word’s ratio of spoken/written uses is probably much higher than for many other words, because it’s a way of verbalizing written symbols. In writing, we can just say “subsection (ii),” but when we pronounce it, we need something more than that, and for some people “Romanette” is that something more. This suggests that the term might be more common than my Google search suggests.
Still, what strikes me about the term is that many of its users seem to assume that it’s widely known, even though many other experienced lawyers — pretty much all of the handful of lawyers that I’ve run this by — have never heard of it. One can expect this for some terms widely known by lawyers but not by laypeople (such as “conclusory“); many users of such terms might think the whole world knows the term because so many of their friends are lawyers.
But how would a term such as “Romanette” become so commonplace in some widely dispersed legal circles, to the point that its users assume that it’s widely known, but so unknown to others within the same profession? Did it arise at some particular law school, or in some law firm, or among users of some particular drafting manuals, and thus seem common to people who have been exposed to it but unknown to others? Or am I mistaken in my conjecture, and the users of the word like it so much — or think it’s so good for showing off — that they use it even though they know many listeners don’t understand it?
If you have some answers to these questions, I’d love to hear them in the comments.