Same Name, Different Game: Terms That Share a Word but Mean Something Very Different

Peloton’s All for One Music Festival concluded on Monday.

It's an annual event where fitness meets music, bringing together a wide range of artists from different genres for themed workout classes. It’s a celebration of music and movement, with artists like Nelly and Nelly Furtado (from this year’s lineup), as well as Dave and Dave Matthews Band (from last year), taking the stage. While the names may sound the same, the differences in their music are striking—Nelly's hip-hop hits like "Hot in Herre" stand in stark contrast to Nelly Furtado's pop sound in tracks like "I’m Like a Bird." Similarly, Dave Mathews Band's jam-band vibe is very different from the music of British rapper Dave.

Just as these artists may share similar names but create very different music, legal concepts often start with the same word but have distinct meanings.

Let’s explore five pairs of legal terms that begin with the same word but mean entirely different things.

✅  Race Statute vs. Race-Notice Statute

Race statute and race-notice statute may seem like they belong to the same legal family, but they operate differently in real property law. Under a race statute, the person who records first has priority over property interests, regardless of whether they had prior knowledge of other claims. Meanwhile, a race-notice statute requires both that the individual records first and that they are a bona fide purchaser without knowledge of previous claims.

When answering real property questions on the bar exam, determine whether the jurisdiction uses a race statute (first to record wins) or a race-notice statute (record first and be unaware of other claims).

✅  Reasonable Suspicion vs. Reasonable Expectation of Privacy

Reasonable suspicion is a standard used by law enforcement to justify brief stops and detentions when they have specific facts suggesting criminal activity. On the other hand, reasonable expectation of privacy is a critical Fourth Amendment concept: it determines whether a person has standing to raise a constitutional challenge against a government search or seizure. Without a reasonable expectation of privacy, an individual cannot challenge the constitutionality of the search.

On the bar exam, focus on the issue of standing when considering reasonable expectation of privacy. If a person doesn't have a reasonable expectation of privacy in the place or thing being searched, they cannot raise a Fourth Amendment challenge. Conversely, reasonable suspicion applies when evaluating whether a police officer can stop someone based on observable facts.

✅  Res Ipsa Loquitur vs. Res Judicata

Both res ipsa loquitur and res judicata may start with res, but they are applied in different areas of law. Res ipsa loquitur is a doctrine used in tort law, where the mere occurrence of an accident suggests negligence. In contrast, res judicata is a doctrine in civil procedure that prevents parties from relitigating a claim that has already been resolved by a final judgment.

Don’t let the Latin trip you up. Res ipsa involves negligence, while res judicata is about finality.

✅  Constructive Eviction vs. Constructive Notice

These two terms are both “constructive,” but they address very different scenarios. Constructive eviction occurs when a landlord’s actions (or failure to act) make the property uninhabitable, forcing the tenant to leave. Constructive notice is a legal presumption that a person has knowledge of something (such as a recorded deed), even if they didn’t actually know about it.

In property law questions, if the facts involve a tenant being forced out, think constructive eviction. If it's about a party being presumed to have knowledge of a fact, think constructive notice.

✅  Negligence vs. Negligence Per Se

Negligence occurs when someone fails to exercise reasonable care, leading to harm. A prima facie case of negligence requires establishing duty, breach, causation, and damages. Negligence per se is a more specific form of negligence that arises when someone violates a statute or regulation, and that violation results in harm that the statute was designed to prevent.

On the bar exam, if there’s a statutory violation, consider whether negligence per se applies. It can simplify your analysis because proving the breach of duty is automatic when the statute is violated. Of course, causation and damages still need to be established under negligence per se.

Just like how Nelly and Nelly Furtado, or Dave and Dave Matthews Band, may sound similar but offer vastly different music, legal terms that share a word can lead to very different outcomes. Keep these distinctions in mind as you study, and you’ll be prepared to navigate the fine lines that separate these legal concepts.