Posted by Eugene Volokh:
Postliminary:
http://volokh.com/archives/archive_2009_08_16-2009_08_22.shtml#1250878358
Today's [1]Rutti v. Lojack Corp. has the following passage:
Mike Rutti sought to bring a class action on behalf of all
technicians employed by Lojack, Inc. (�Lojack�) to install alarms
in customers� cars. He sought compensation for the time they spent
commuting to worksites in Lojack�s vehicles and for time spent on
preliminary and postliminary[1] activities performed at their
homes.... [W]e vacate the district court�s grant of summary
judgment on Rutti�s postliminary activity of required daily
portable data transmissions ....
[Footnote 1:] Although not in the dictionary, this word is used in
the critical statute, [2]29 U.S.C. § 254(a)(2). The statute
provides that an employer need not pay for:
activities which are preliminary to or postliminary to said
principal activity or activities, which occur either prior to the
time on any particular workday at which such employee commences, or
subsequent to the time on any particular workday at which he
ceases, such principal activity or activities.
There is some inherent ambiguity in this definition. On the one
hand, these terms refer to the timing of the activity as either
before or after the employee�s primary job functions. On the other
hand, the terms appear to be used to distinguish off-the-clock
activities for which an employee is not entitled to compensation
from �principal activities� for which an employee is entitled to
compensation. In this opinion, the terms are used primarily to
refer to the timing of the activities in issue.
I often like to note unusual legal words, so that's one reason for the
post. But another reason is to remark on the "not in the dictionary"
locution. Of course, there is no "the dictionary"; and while the word
doesn't seem to be in any of the [3]major online free dictionaries, it
is in the Oxford English Dictionary -- surely a dictionary, whether or
not you see it as the dictionary.
The first definition in the dictionary turns out to be legalese,
though quite different from the meaning in the statute. The word
"postliminy" is listed in the OED as "Roman Law. The right of a
banished person or captive to resume civic privileges and former
rights on return from exile (hist. in later use). Hence Internat. Law:
the restoration to their former status of persons and things taken in
war." "Postliminary" is then defined as "Relating to or involving the
right of postliminy."
But the second definition is simply "Coming after, subsequent. Opposed
to preliminary." The earliest source is 1826, in a novel by Sir Walter
Scott (a pretty good source as sources go), though a Google Books
search revealed an [4]1811 source as well. And of course the existence
of the word is to be expected, given the way English words are often
formed.
Nor is the ambiguity the court points to isn't some artifact of the
suspect, supposedly not-in-the-dictionary nature of the word
"postliminary"; rather, the ambiguity is in the statutory definition,
and applies to "preliminary" as well.
Now I wouldn't urge people to use the word "postliminary," unless
they're dealing, as did this case, with a particular statute that uses
the word. The word strikes me as unidiomatic (that it's not in the
standard one-volume desk dictionaries is indeed a sign of that), and
as clunky and distracting, even when the meaning is obvious. But it is
in at least one pretty important dictionary, and isn't entirely a
[5]nonce word on Congress's part.
Thanks to [6]Gabriel Malor for the pointer.
References
1. http://www.ca9.uscourts.gov/datastore/opinions/2009/08/21/07-56599.pdf
2.
http://frwebgate2.access.gpo.gov/cgi-bin/PDFgate.cgi?WAISdocID=3sAZ4m/0/2/0&WAISaction=retrieve
3. http://onelook.com/?w=postliminary&ls=a
4.
http://books.google.com/books?id=GA8rAAAAYAAJ&pg=PA77&dq=postliminary&lr=&as_drrb_is=b&as_minm_is=0&as_miny_is=&as_maxm_is=0&as_maxy_is=1840&num=100&as_brr=0#v=onepage&q=postliminary&f=false
5. http://dictionary.reference.com/browse/nonce+word
6. http://ace.mu.nu/
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