Gored

Attractive Nuisance hopes that her readers will forgive her if her post is less elegant than usual: she is too enraptured by the election coverage to post in her typical erudite fashion. She wanted, however, to commemorate the eight-year anniversary of Bush v. Gore, 531 U.S. 98 (2000), by examining the wealth of unflattering descriptive verbiage that opinion has generated in subsequent opinions. Indeed, A-Nu would wager that no other opinion has generated the same level of semi-covert scorn.

In Stewart v. Blackwell, 444 F.3d 843, 880 (6th Cir. 2006), Judge Gilman's dissent baldly characterizes Bush v. Gore as "murky." Judge Martin's majority opinion loftily responds: "Murky, transparent, illegitimate, right, wrong, big, tall, short or small; regardless of the adjective one might use to describe the decision, the proper noun that precedes it-- 'Supreme Court'--carries more weight with us. Whatever else Bush v. Gore may be, it is first and foremost a decision of the Supreme Court of the United States and we are bound to adhere to it." Id. at 859 n.8. Although Judges Gilman and Martin clearly have their differences here, A-Nu is please to see that they managed to find a point of agreement in their poorly-disguised disdain for the logic of Bush v. Gore.

A popular adjective to describe Bush v. Gore is "unique." E.g. People v. Warren, 2002 WL 307579 (Cal.App. 3 Dist. Feb 27, 2002). Judge Lynch wrote in Green Party of State of New York v. Weiner, 216 F. Supp. 2d 176, 192 (S.D.N.Y. 2002), that Bush v. Gore, "if not entirely a one-day ticket, was decided on extraordinary facts."

A-Nu sincerely hopes that Bush v. Gore will, in fact, live up to the descriptor applied to it by so many courts and remain -- not "so unique," not "very unique" -- but simply, unequivocally, unique.

Wicked-pedia

A new paper abstract up on the Social Science Research Network brought to A-Nu's attention the fact that Wikipedia has now been cited in American judicial opinions over 300 times and counting. A-Nu is appalled by this trend.

Her primary gripe is not with the factual accuracy of Wikipedia. There are plenty of people griping about that already. Besides, A-Nu confesses to consulting Wikipedia (as an adjunct to Google) as a shortcut for all sorts of small intellectual annoyances that threaten to disturb the flow of day-to-day life, such as when she can't remember the name of Bolivia's president, or when she suddenly needs to know the exact rhyme scheme of a Villanelle. (Evo Morales and five triplets with a closing quatrain, for those playing along at home.)

Rather, A-Nu objects to the literary implications of the Wikipedization of American jurisprudence. She views a judge's choice of source documents to cite to as a component of the overall literary merit of the opinion. Citing Wikipedia for a proposition is tantamount to selecting USA Today over the Wall Street Journal for current events coverage, or School House Rock over the Chicago Manual of Style on a grammatical matter. As to the inelegant, fragmented, misspelled, passive-voice-using, comma-splice-ignoring, convention-of-having-both-a-noun-and-a-verb-in-every-sentence-flouting verbiage of Wikipedia, A-Nu feels strongly that Wikipedia's hideously crafted prose does not belong one step away from the sacred pages of judicial opinion.

She remains unpersuaded by the whole "Wikipedia is a unique insight into opinion of the general public" argument for incorporating Wikipedia cites. Wikipedia isn't an insight into public opinion; it's an insight into the opinions (and research skills) of a select posse who -- for whatever reason -- have so few obligations relating to employment, family, friends, hobbies, pets, and personal upkeep that they actually have the time to draft Wikipedia entries. And A-Nu isn't quite sure what public opinion is doing in a judicial decision anyway. There's a reason we entrust the fates of parties to litigation to tenured judges instead of an incensed shouting mob, and it has everything to do with not trusting public opinion.

Take note, judges. Wikipedia doesn't even get your bios right. Do you trust it to write your opinions for you?

Pugnacious

A few nights ago, A-Nu was walking down the street, minding her own business. It was dark but not late, and there were assorted other people around as well as a good bit of traffic. She approached a corner, where an overgrown hedge blocked her view of the foot traffic proceeding down the street perpendicular to the one A-Nu was walking on.

Just as A-Nu got to the end of the hedge, a pug came rocketing around the corner, a manic gleam in its bulging eyes, copious amounts of drool issuing from its hideously squashed mouth. "OH SHIT!!!" A-Nu exclaimed involuntarily upon confronting, and nearly stepping upon, this foul apparition. The foul apparition's owner, who turned out to be attached to the foul apparition via leash, rounded the corner an instant later and trained a self-righteous glare on A-Nu. A-Nu ducked and ran. She knows better than to mess around with inherently delusional people, a class to which pug owners belongs by definition.

Anyway, A-Nu's faithful readers will be pleased to know that she has almost fully recovered from this traumatic experience. Oddly, however, the encounter turned out to be somewhat prophetic. That very night A-Nu went home and learned, via the interwebs, that Chief Judge Herndon of the Southern District of Illinois had issued an opinion denying the government's motion to quash a subpoena "requesting records of the training of . . . canine Paco." United States v. Thomas, 2008 WL 4671501 (Oct. 22, 2008).

While not particularly literary in nature, this opinion delights A-Nu because of its repeated references to the drug-sniffing dog as "canine Paco." Given that many judges intentionally don't use names (preferring terms like "plaintiff," "defendant," "officer," "witness," etc.), A-Nu finds it endearing that Judge Herndon not only refers to Paco by name, but also anoints him with the title of "canine."

Moreover, the opinion holds that the records are necessary to determine whether canine Paco is a "well-trained narcotics-detection dog," evoking images of evidence being introduced as to canine Paco's grades during narcotic-detection school; disputes as to whether canine Paco's skill level rose to the level of WELL-trained, as opposed to merely adequately-trained; and even -- perhaps -- evidence of canine Paco's unsavory off-the-record personal life the that judge might or might not deem unfairly prejudicial under Federal Rule of Evidence 403.

Writer's Block

Attractive Nuisance has been noticing that opinions keep getting longer and longer. She finds this ironic, given that peoples' (including lawyers') attention spans are, according to the Atlantic Monthly, getting shorter and shorter .

She supposes that part of the problem is one of sheer volume. Courts are bringing cases into existence at a greater rate than cases are passing out of existence. (Do cases actually pass out of existence? A-Nu doesn't know.) At any rate, this bloated corpus of precedent appears to be leading judges to think that they need to quote and cite more and more, lest they fail to provide a comprehensive survey of every damn case out there. The result is an opinion that reads like a treatise.

A-Nu thinks this trend needs to be quashed faster than you can say "Ritalin." She has many a beef about overly long opinions, but her A-1 gripe is that they tend to correspond with excessive use of block quotes. Given the massive number of cases out there, it is now possible for judges to write opinions almost entirely by cutting and pasting stuff from previous opinions. It makes A-Nu's delicate flesh crawl to see a ginormous block quote slapped down right in the middle of an opinion's analysis section, prefaced only by a lofty "As the Supreme Court has explained..." and followed only by a lame "The situation at hand is, obviously, closely analogous." A-Nu recognizes that Article III tenure is lifelong, but sincerely believes that judges who so blatantly abjure their responsibilities will face consequences in the hereafter.

Her irritant du jour is M.A.A. v. Kinsland, (6th Cir. Oct. 7, 2008), in which Judge Rogers proves he's still "Johnny from the block" by incorporating a three-paragraph quotation from Tinker v. Des Moines School District (among other such quotations). A-Nu recognizes that the use of such quotations frees up valuable time to make multicolored paper clip chains and have federalist society parties with one's clerks. But other responsibilities likewise call. A-Nu is a fan of not checking anything, including her free speech rights, at the schoolhouse gate, but she also thinks that perhaps Judge Rogers might wish to keep it real by expressing that admirable sentiment in his own words.

All in all, A-Nu thinks this whole phenomenon of battering the reader over the head with massive block quotes evinces a certain judicial timidity. If you use your own words, you have to make sure you're right, and if someone calls you out -- say, in a petition for rehearing -- you have to count on your words to stand up to scrutiny. But if you use a three-paragraph quote from the Supreme Court, no one questions its accuracy. A-Nu therefore exhorts Judge Rogers -- and his brethren -- to forego the block quote. Next up: the abominable string cite.

The Status Quote

Attractive Nuisance owes her readers an apology for her long absence from the interwebs. Alas, sometimes even the most adroit dodger of the proverbial workplace bullet ends up having to do some work. But A-Nu is pleased to report that this brief interruption in her schedule has drawn to a close, and she is therefore free to resume the lifestyle of feckless and joyful parasitism to which she is all too well suited.

Said lifestyle, of course, involves pointing out the linguistic fallacies of federal judges, and A-Nu has a bone to pick with Judge McKee regarding Miller v. Clinton County, 4415102 (3d Cir. Oct. 1, 2008), available here .

By and large A-Nu is a fan of Judge McKee's writing, which not infrequently transcends the "clear and readable" category (A-Nu's equivalent of a middle-of-the-bell-curve, on-mean grade) to earn the "nicely phrased" badge of honor (a solid A-minus from A-Nu). In Clinton, for example, McKee rejects a document proffered by a government employee as insufficiently related to a matter of public concern to warrant First Amendment protection. He writes: "Miller's letter did manage to brush ever so gently against a matter of public concern . . . . However, that seemingly serendipitous encounter does not convert her personal grievance into protected speech." A-Nu just adores this lovely and alliterative description.

Judge McKee has an unfortunate habit, though, of putting words that are arguably a bit slangy or idiomatic in quotation marks, as though asking the reader to forgive his use of a slightly obscure term. In Clinton, the "obscure" words and phrases thus quotationally segregated include "gripe," "axe to grind," and "cherry pick." A-Nu finds this (a) unnecessary; (b) pretentious; and (c) contributing to the unfortunate perception of the judiciary as so out of touch with reality that it can't use words like "gripe" without offering a punctuational apology for such brazen informality. She especially takes Judge McKee for task for this sort of nonsense, given that he's barely in his sixties , a mere youth as far as the federal judiciary is concerned.

A-Nu notes that ample persuasive authority establishes the propriety of using the noted phrases sans quotatation marks. Judge Posner has referred to an unpunctuated gripe in at least ten opinions, beginning more than twenty-five years ago in Maxey v. Thompson, 680 F.2d 924 (7th Cir. 1982) ("Johnson would have a legitimate gripe . . . ."). If Posner, who turns seventy in January , has been griping, unpunctuated, for a quarter century, A-Nu thinks Judge McKee should feel free to do likewise.

The same goes for McKee's axe to grind (see, e.g., Tucker v. Palmer, 2008 WL 4067541 (6th Cir. Sept. 4, 2008); Higgenbotham v. Baxter Internat'l, Inc., 495 F.3d 753 (7th Cir. 2007)), as well as his picked cherries (see, e.g., Wood v. Allen, 2008 WL 4215078 (11th Cir. Sept. 16, 2008); Trenkler v. United States, 536 F.3d 85 (1st Cir. 2008)).

So here's a "shout out" to the federal judiciary: "ditch" those "wack" quotation marks. Your opinions will be the better for it.

Myths and Legends

Greetings, avid readers. Today's post is about myths and legends in judicial opinion-writing. No, Attractive Nuisance isn't talking about Ye Olde Legende that the slave-owning, female-disenfranchising Founding Fathers were somehow insightful enough to create a constitution so timeless that, even now, we should slavishly apply strict constructionism to its every word. Judges and professors have devoted absurd amounts of time to defending that particular myth -- some so vehemently that A-Nu is surprised that they aren't -- as a symbolic affirmation of belief -- still writing their articles on parchment with quill, carefully inscribing each "s" to look like an "f."

Rather, A-Nu would like to go back an additional few millennia (coincidentally, to a different slave-owning, female-disenfranchising time) in order to make a couple of observations about Greek mythology.

Observation number one: as a few examples amply demonstrate, mythological references are common. A Westlaw search of "Pandora /s Box" in the federal database alone produces an astonishing 732 hits. "Scylla /s Charybdis" yields 580 references. And, "Herculean" pulls up 828 hits, while " Sisyph!" produces a hefty 224. The latter, perhaps, reflects the judiciary's view of its own onerous task. See, e.g., Blatchford v. Native Village of Noatak and Circle Village, 501 U.S. 775, 786 n.4 (1991) (Scalia, J.) ("The dissent's view returns us, like Sisyphus, to the beginning of this 200-year struggle.").

Many of the most famous mythological figures are too prevalent as party names to search with any reasonable degree of accuracy. For instance, who would have guessed that Medusa would have lent her name to a transatlantic steamer, a cement company in Missouri, and a Seattle nightclub? Despite this obstacle, however, a few minutes on Westlaw is more than enough to reveal that judges are prone to weave references to Greek tales into their opinions.

Observation number two, which flows naturally from observation number one, is that mythical references tend to be negative, largely invoking monsters, impossible tasks, and crimes against nature. (See previous two paragraphs.) In contrast, references to beauty, grandeur, and goodness are few and far between.

"Helen of Troy," for instance, yields a mere 24 results, most of which relate to litigation involving an eponymous company and its marketing of adult novelties. Indeed, even those references invoking Helen in her own right tend to focus on all the trouble she caused. As Judge Steele noted in describing a perceived statutory defect, "if Helen of Troy had the face that launched 1,000 ships, then surely this statutory and regulatory ambiguity has the potential to launch 1,000 lawsuits." Patriot Mfg. v. Dixon, 399 F. Supp. 2d 1298, 1301 n.2 (S.D. Ala. 2005). Similarly, "Mount Olympus" generates only 15 mentions -- and again, such mentions crop up primarily in negative contexts, such as the description of administrative orders as "com[ing] down like lightning bolts from Mount Olympus." OXY USA v. Babbitt, 230 F.3d 1178 (10th Cir. 2000) (Brown, J., dissenting).

What are we to make of all this legend-invocation? Perhaps judges' steady stream of mythological references reflects their internalization -- conscious or unconscious -- of the fatalism of Greek mythology. Judges are merely the vehicle through which the gods speak, and the common law the seamless web into which a litigant's fate is spun. One's legal destiny is inescapable, and if you're Oedipus, no amount of pricey lawyering can eclipse the fact that you offed dad and then fooled around with mom.

An alternate theory -- and just go with A-Nu on this one, it's a little out there -- is that perhaps judges just like to toss around references to ancient Greek tales because it makes them seem erudite. A casual allusion to Agamemnon, after all, implies that the alluder not only knows who Agamemnon is, but may even have read the Iliad at some point (rather than merely skimming the Cliff Notes in high school, or else just putting Troy at the top of the Netflix queue).

But perhaps A-Nu is over-analyzing. She acknowledges that parsing opinions is her Achilles heel. She therefore invites her readers to submit alternative explanations for the prevalence of Greek mythological references in judicial opinions, from which she'll pick the best. First prize: VIP admission to Medusa, plane tickets to Seattle not included.

Well-written: Judge Cook

A-Nu would like to give literary props to Judge Cook's decision in JDP, Inc. v. Chronimed, Inc., 2008 WL 3876343 (6th Cir. Aug. 22, 2008). A-Nu always gets fidgety when she sees "inc." on both sides of the v., and true to expectation, this is one boring-ass contract case. Yet Judge Cook ably performs the Herculean task of making this yawner of a dispute readable.

A-Nu calls her readers' attention to the little ways Judge Cook makes her prose sound -- if not exactly scintillating -- at least not like something vomited straight out of a contracts treatise. She describes one party as not wishing the other "to merely turn over the keys and leave," while the restless party "chafed" and "felt crippled by" the other's business approach. The opinion is peppered with such relatively colorful description.

And in addition to elevating the opinion from the "utter tedium" category, Judge Cook's avoidance of lawyer-ese serves another purpose. She reminds us that there are human beings with real-life interests behind the "inc." Especially in contracts, such an achievement is a more than worthy accomplishment.

Well-written: Judge Posner

Attractive Nuisance really likes an opinion Judge Posner released yesterday: United States v. Higdon (July 9, 2008). People by and large acknowledge -- whether worshipfully or bitterly -- that Posner is a genius, but have mixed views on his writing style. A-Nu, however, thinks Posner's writing is way underrated. She loves the way he totally ignores all the conventions by using colloquialisms whenever it suits him, citing cases only when he feels like it, structuring his opinions however he happens to want to when he wakes up in the morning (none of this Roman numeral bullshit for him), and refusing to candy-coat anything (even when it involves a fuck-up by one of his Article III brethren). Higdon nicely demonstrates all of these literary talents.

As Posner explains in an admirably succinct, two-paragraph summary, Higdon involves a twenty-three year old defendant who took over his mother's business of transporting Medicaid patients and deliberately overbilled Medicaid to the tune of $294,000. The sentencing guidelines range was 18-24 months, and the prosecution recommended that the defendant be sentenced within that range, but the district court judge sentenced the him to 60 months. A-Nu notes how skillfully and subtly Posner weaves sympathetic details into these brief opening paragraphs: the defendant graduated high school and even attended some college; he was gainfully employed as a laborer; he took over the company at his mother's request; he was only twenty-three when he engaged in the overbilling.

The remainder of the opinion consists of Posner slamming the district court judge for departing so significantly from the guidelines without offering a remotely satisfactory explanation of his reasons for doing so. Posner, charmingly, accomplishes this objective not via a narrative, not via a Roman numeralled monstrosity, but via a good old-fashioned numbered list that runs a mere seven pages.

With typical Posnerian subtlety, he kicks off the list with the observation: "The sentencing transcript in this case is laced with apparent mistakes and misunderstandings by the district judge that may have been decisive in his imposing a sentence almost three times the length of the midpoint of the guidelines range." Throughout, he emphasizes the district judge's failure to explain himself with the literary device of deliberately speculative language: "[t]he judge appears to have believed"; "[w]e cannot tell whether the judge realized"; "[t]he judge may have confused Medicaid with Medicare"; "the judge provided no grounds"; "[t]he judge seemed to believe"; "[t]he reason the judge disregarded the preceding point may have been his belief"; "[t]he judge did not explain why"; "the judge did not mention"; "[the judge] did not mention any sentence that he has imposed in another case." The uncertainty of the phrasing makes abundantly clear that the panel would have to engage in a bit of judicial clairvoyance to uphold the sentencing departure -- in short, aptly demonstrating why affirmance is impossible.

A-Nu also really enjoys the way Posner tosses off broad insights, with nary a cite in sight, as if to say, "I dare anyone to challenge my authority to cut and paste stuff off my blog and incorporate in this opinion as dicta." Early on, he acknowledges that Booker allows judges to depart from the guidelines, but then cautions: "As a matter of prudence, however, in recognition of the Commission's knowledge, experience, and staff resources, an individual judge should think long and hard before substituting his personal penal philosophy for that of the Commission." Posner cites nothing for this rather sweeping pronouncement, but A-Nu will bet you an unopened copy of An Economic Analysis of Law (7th ed.) that the lesser luminaries of the Seventh Circuit will be quoting that dictum for years to come.

In like fashion, Posner concludes with some dicta about how district courts should comport themselves and takes a final swipe at the district judge: "We suggest that when a judge decides to impose an out-of-guidelines sentence . . . he write out his reasons rather than relying entirely on the transcript of his oral remarks to inform the reviewing court of his grounds. The discipline of committing one's thoughts to paper not only promotes thoughtful consideration but also creates a surer path of communication with the reviewing court." And again, though Posner cites nothing for this nugget of wisdom, A-Nu is nonetheless certain that district judges all over the upper midwest are taking note of his instruction on their yellow legal pads. ("To-do re sentencing hearing -- commit thoughts to paper.")

Although Posner's propensity for dicta has attracted criticism from other judges and professors, A-Nu likes it: so many appellate judges try to get away with saying as little as possible (the less they say, the less there is to to find fault with), with the result that the district courts are left to blunder around and maybe make the same mistake twice. For all Posner's lack of tact, post-Higdon, the district courts surely understand what they're supposed to do whenever they dare to put a toe outside the guidelines range.

Headings and Headaches

Attractive Nuisance has noticed an exponential increase in the use of headings, subheadings, sub-subheadings, and even sub-sub-subheadings in judicial opinions. She doesn't know the cause of this phenomenon. Maybe the headings-mania is a symptom of the judiciary's desperate efforts to maintain order in an ever-more-complex society. Or maybe it just means that the current crop of judges was taught by a crop of high school teachers who were really into making everyone outline their essays on The Catcher in the Rye, and the habit stuck.

Anyway, it doesn't really matter where the headings come from or what they signify. The much more important point is that having to keep track of how deep she is into the damn Roman numeral structure gives A-Nu a five-Advil migraine. Just a few days ago, in Hysten v. Burlington Northern Santa Fe Railway Co., No. 05-3391 (10th Cir. July 7, 2008), Judge Holmes came out with an opinion featuring sections II.1.b.i., II.1.b.ii., II.1.b.iii., and II.1.b.iv. To Judge Holmes' credit, the opinion is careful and thorough, and A-Nu (mostly) doesn't blame him for the tears of boredom streaming down her face at its conclusion. After all, it's not his fault that the opinion involved claims under the Federal Employer's Liability Act.

But A-Nu notes that the another member of the federal judiciary named Holmes seemed to be able to whip out seminal opinions with nary a Roman numeral in sight. In Schenck v. United States, 249 U.S. 47 (1919), Oliver Wendell delivers a groundbreaking decision -- complete with pithy comment about "falsely shouting fire in a theater" -- with exactly six paragraphs and zero headings. And in Lochner v. New York, 198 U.S. 45 (1905), Ollie W.'s dissent contained three paragraphs, zero headings, and one of the most quoted lines in Supreme Court jurisprudence: "a Constitution is not intended to embody a particular economic theory." And we all know who had the last laugh in Lochner.

Humor, Part IV: Sarcasm

Sarcasm seems to come slightly more naturally to judges as a rhetorical tool and occasional source of humor -- perhaps because sarcasm often lends itself to touting the judge’s own intelligence at the expense of other judges, lawyers, parties, the "man on the street," the "reasonable person," or all of the above. Anyway, A-Nu had no trouble finding instances of sarcasm in judicial opinions, a few of which she presents for the enjoyment of her reader(s).

In addition to (what A-Nu views as) the paramount objective of entertaining the reader, sarcasm can also discredit the arguments of dissenters or whiny parties. Justice Souter aptly demonstrates this tactic in McCreary County, Ky. v. American Civil Liberties Union of Ky., 545 U.S. 844 (2005). The case is really a battle over whether courts can examine the history of a religious display (here, a Ten Commandments in a courthouse) in determining whether said violates the Establishment Clause. Souter’s majority opinion holds that courts can and should examine such history, because the court adopts the perspective of a "reasonable objective observer" who can be presumed to know the history of the display. Noting the government's protest to such an approach, Souter acerbically responds that the government "want[s] an absent-minded objective observer." He then snidely discredits the Scalia dissent's similar objection, remarking: "Just as Holmes’s dog could tell the difference between being kicked and being stumbled over, [the history of the display] will matter to objective observers. The dissent, apparently not giving the reasonable observer as much credit as Holmes’s dog, contends that in practice it will be ‘absur[d]’ to rely upon differences in purpose in assessing government action."

A-Nu revels in the delightful subtlety of Justice Souter's nastiness; Souter, however, is playing by Marquis of Queensbury rules in comparison to the barehanded sarcasm of Judge Kent in Bradshaw v. Unity Marine Corp., 147 F. Supp. 2d 668 (S.D. Tex. 2001). The opinion is sarcastic enough -- and funny enough -- that A-Nu thinks it deserves to be quoted at length. Judge Kent begins:

"Before proceeding further, the Court notes that this case involves two extremely likable lawyers, who have together delivered some of the most amateurish pleadings ever to cross the hallowed causeway into Galveston, an effort which leads the Court to surmise but one plausible explanation. Both attorneys have obviously entered into a secret pact-complete with hats, handshakes and cryptic words-to draft their pleadings entirely in crayon on the back sides of gravy-stained paper place mats, in the hope that the Court would be so charmed by their child-like efforts that their utter dearth of legal authorities in their briefing would go unnoticed. Whatever actually occurred, the Court is now faced with the daunting task of deciphering their submissions. With Big Chief tablet readied, thick black pencil in hand, a devil-may-care laugh in the face of death, [and] life on the razor's edge sense of exhilaration, the Court begins."

Judge Kent first mocks the defendant for "submitting a Motion that relies upon only one legal authority. The Motion cites a Fifth Circuit case which stands for the whopping proposition that a federal court sitting in Texas applies the Texas statutes of limitations to certain state and federal law claims. That is all well and good-the Court is quite fond of the Erie doctrine; indeed there is talk of little else around both the Canal and this Court's water cooler. Defendant, however, does not even cite to Erie, but to a mere successor case, and further fails to even begin to analyze why the Court should approach the shores of Erie."

Kent then chastises the plaintiff for citing to an irrelevant case and, moreover, mistyping the citation: "The Court cannot even begin to comprehend why [the cited] case was selected for reference. It is almost as if Plaintiff's counsel chose the opinion by throwing long range darts at the Federal Reporter (remarkably enough hitting a nonexistent volume!). And though the Court often gives great heed to dicta from courts as far flung as those of Manitoba, it finds this case unpersuasive."

And the opinion concludes:

"After this remarkably long walk on a short legal pier, having received no useful guidance whatever from either party, the Court has endeavored, primarily based upon its affection for both counsel, but also out of its own sense of morbid curiosity, to resolve what it perceived to be the legal issue presented. Despite the waste of perfectly good crayon seen in both parties' briefing (and the inexplicable odor of wet dog emanating from such) the Court believes it has satisfactorily resolved this matter. At this juncture, Plaintiff retains, albeit seemingly to his befuddlement and/or consternation, a maritime law cause of action . . . . . However, it is well known around these parts that [defendant's] lawyer is equally likable and has been writing crisply in ink since the second grade. Some old-timers even spin yarns of an ability to type. The Court cannot speak to the veracity of such loose talk, but out of caution, the Court suggests that Plaintiff's lovable counsel had best upgrade to a nice shiny No. 2 pencil or at least sharpen what's left of the stubs of his crayons for what remains of this heart-stopping, spine-tingling action."

After reading this sublime effort and his Bolivia masterpiece, A-Nu thinks she's developing a full-on literary crush on Judge Kent. So what if he's a sex harasser and general doer of shady and possibly criminal deeds? A-Nu thinks any judge who displays such literary brilliance deserves a free pass or six -- no doubt the stress resulting from the intense pressure of crafting entertaining jurisprudence adequately explains any little indiscretions in which our lovable Judge Kent might or might not have engaged. She hopes he put his little four month disciplinary hiatus to good use by coming up with more literary witticisms to enrapture his fan base.

Well-written: Judge Pregerson

Attractive Nuisance cringes whenever she comes across linguistic redundancy. When her friends announce they need to go make a withdrawal from the "ATM machine," presumably by punching in their "PIN number," sometimes she isn't there when they get back. Or when her boss sends out an email to everyone announcing a meeting "at 10 AM tomorrow morning," A-Nu immediately hits "reply-all" to explain that she simply can't wait for the whole department to "assemble together" in "close proximity" so that they can "continue on" their unbelievably fascinating discussion from last meeting. (Well, no, she doesn't do that, but she thinks about it, oh yes.)

Today, though, the Ninth Circuit's opinion in Center for Bio-Ethical Reform v. Los Angeles County Sheriff (9th Cir. July 2, 2008), has made A-Nu see redundancy in a whole new light. The opinion involves First and Fourth Amendment claims brought by a pro-life group. The group made a thoughtful, nuanced attempt to educate middle school students about the abortion debate by repeatedly driving a truck displaying "enlarged, graphic photographs of early-term aborted fetuses" around the perimeter of the school. The school called the cops; the cops detained the group and searched their truck; and, inevitably, section 1983 litigation ensued.

Judge Pregerson (joined, and no doubt egged on, by Judges Berzon and W. Fletcher) goes on a civil liberties rampage, finding First and Fourth Amendment violations right and left. The substantive issues alone are interesting enough to keep A-Nu from passing out on her keyboard in a puddle of drool. Moreover, the writing is pretty good. Pregerson is generally well above mean as far as judicial literary efforts go, and this opinion is in line with his usual product: thorough, readable, and devoid of noxious Latin, though perhaps a tad repetitive (do we really need to be told three times that some girls were crying, some boys were thinking about throwing rocks, and some kids discussed the incident that day in their classes?), and perhaps a tad over-organized (do we really need nineteen headings and subheadings?).

What makes this opinion a standout, though, is Pregerson's description of a sheriff sued in his official capacity as a "redundant defendant," meaning that, because both a municipal officer and a local government entity are named in the suit, the court can dismiss the officer. A-Nu is completely enchanted with this delightful phrase. She loves its assonance bordering on rhyme, she thinks it cleverly evokes the sheriff's complete lack of relevance to the suit, and she especially enjoys imagining the dismissed sheriff pumping his fist in celebration of his own redundancy. Moreover, Pregerson's usage makes history: he is the first federal appellate judge to refer to a "redundant defendant" in an opinion (section 1983 or otherwise), although a handful of district courts have employed the phrase previously.

A-Nu therefore recommends that the words "redundant defendant" be used whenever possible in section 1983 cases, and can only hope that the legal profession will find other contexts in which such a charming phrase might be put to use. For instance, she can easily envision it taking root as an affirmative defense in criminal law: "Ladies and gentlemen of the jury, the man you see before you is a 'redundant defendant': the conspirators already had a trailer in which to conceal their meth lab, so what conceivable purpose could they have for involving Bobby Ray here?"

And she simply can't wait for Judge Pregerson's next opinion, which she now fully expects to rehabilitate the image of some other habitual grammatical offender. Next think you know he'll have her cooing over double negatives or swooning over a comma splice.

Humor, Part III: The Joke qua Joke

Attractive Nuisance defines a joke as a potentially free-standing remark, anecdote, or other narrative that at least attempts to be funny. But even under her rather unambitious definition, it turns out that jokes are pretty thin on the ground in American jurisprudence.

To locate judicial jokes, A-Nu did what she thought were several promising searches on Westlaw in both the federal and state databases: "why did the chicken" /s road; "walks into" /3 bar; "knock knock." The first two yielded no hits whatsoever; the third turned up an array of boring Fourth Amendment cases involving cops barging into people's homes and messing shit up.

Not so easily deterred, A-Nu then did term searches for "joke" and "punch line" and turned up a bunch of seriously unfunny jokes recounted as part of the evidence in Title VII sexual harassment cases. The punch line of such jokes generally turned out to be hilarious things like "fuck your sister and your mother is a whore." Reeves v. C.H. Robinson Worldwide, 525 F.3d 1139, 1141 (11th Cir. 2008) (failing, aggravatingly, to recount the set-up of quoted offensive punch line, thereby leaving A-Nu's curiosity forever unsatisfied). A-Nu does not, however, think that recounting a joke (or part of a joke) that someone made out in the real world counts as actually making a joke in an opinion, so this search, too, turned out to be fruitless.

Anyway, A-Nu was totally disappointed. For a moment she even thought she might have to eliminate the joke from her taxonomy of judicial humor. But then she breathed a sigh of relief. Surely the black-robed master of black comedy would rescue her. And sure enough, even A-Nu's typical lackadaisical searching speedily unearthed up a joke by Justice Scalia that, in addition to being a bona fide joke, is (unlike many jokes) also funny. The joke appears in Rapanos v. United States, 547 U.S. 715, 754 n.14 (2006) (plurality opinion):

"[A]n Eastern guru affirms that the earth is supported on the back of a tiger. When asked what supports the tiger, he says it stands upon an elephant; and when asked what supports the elephant he says it is a giant turtle. When asked, finally, what supports the giant turtle, he is briefly taken aback, but quickly replies 'Ah, after that it is turtles all the way down.'"

Rapanos itself is too boring and complicated to describe here, but, happily, all one needs to know is that Scalia is using his joke as an unflattering analogy for the logic of Justice Kennedy's separate opinion (although Kennedy probably invited the insult by concurring only in the judgment, thereby depriving Scalia of a majority).

Inspired by Scalia's wit, A-Nu then did some more searching and uncovered a joke-adjacent remark by Judge Shadur of the Northern District of Illinois, sitting by designation in Commonwealth of Puerto Rico v. United States (1st Cir. 2007). Following upon a lead opinion by Judge Lipez and a concurrence in the judgment by Judge Boudin, Shadur demurs:

"In this instance the thoughtful opinions by Judge Lipez and Chief Judge Boudin put me in mind of the old saw about the politician who says of a controversial issue, 'Some of my friends are in favor of X, and some of my friends are in favor of Y, and I'm in favor of my friends.' Both opinions reach the same destination, albeit by different routes, and at the end of the day I share their common conclusion[.]"

It's sort of a joke, right? Well, at this point A-Nu will take what she can get.

One man's vulgarity is another's lyric

When it comes to the federal judiciary, Justice Harlan might just as aptly have observed that "one singer/songwriter's lyric is another federal judge's semi-successful attempt to demonstrate his own hipness and relevance."

A-Nu refers, of course, to Chief Justice Roberts' recent quotation of Bob Dylan's Like a Rolling Stone in Sprint Communications v. APCC Services, 2008 WL 2484712 (June 23, 2008), an opinion that would otherwise serve as a more-than-passable substitute for a fistful of Ambien. In dissent, Roberts wrote as follows: "The absence of any right to the substantive recovery means that respondents cannot benefit from the judgment they seek and thus lack Article II standing. 'When you got nothing, you got nothing to lose.'" Id. at *21 (citing Dylan).

But Roberts' oh-so-casual Dylan reference has the interwebs abuzz with Whether It Was Appropriate and What It All Signifies. The New York Times even deigned to do a story on The Dylan Reference, in which it quotes University of Tennessee Law School Professor Alex B. Long ("perhaps the nation's leading authority on the citation of popular music in judicial opinions") as describing Sprint as a "landmark" opinion because of the Dylan reference. Indeed, in a recent law review article, Professor Long boldly asserted that working popular music references into judicial opinions can "pay[] off in the form of more interesting and persuasive writing."

A-Nu, as usual, has her own take on the matter. She doesn't really disagree with Professor Long's central thesis -- Lord knows that A-Nu is in favor of anything that makes an opinion more interesting. And she thanks Professor Long for amassing and analyzing the corpus of popular-music-related references in judicial opinions and legal scholarship, and for taking the trouble to write up his findings in a hefty forty-nine page law review article.

But A-Nu thinks that the reason a judge or justice might cite lyrics from popular music in an opinion has nothing to do with persuasive value, and is explicable in exactly three sentences. Most judges were way nerdy in high school, and got taunted a lot for their lack of coolness. Popular music is cool. The judicial predisposition to cite popular music therefore stems from a latent desire to be acknowledged as cool, which, apparently, neither years of therapy nor Article III tenure has the power to eradicate.

In support of her thesis, A-Nu notes that these lyrical references are a one-way street -- i.e., you don't see pop musicians tossing off quotations from judicial opinions in their songs. Indeed, a law review article about musicians' reference to legal opinions in their songs would be a pretty fucking diminutive article, one that even A-Nu might have the patience to bluebook. Paul Simon didn't muse "Where have you gone, Earl Warren?" in Mrs. Robinson, and A-Nu feels pretty comfortable staking out the position that it wasn't just because Joe DiMaggio rhymed better. She acknowledges that certain musicians, particularly those in the rap/hip-hop genre, are wont to discuss the judges who sentenced them for various violations of the penal code, but also notes that such references tend to fall into the "personal" rather than the "substantive" category, and, therefore, don't really count. See, e.g., Eminem, Sing for the Moment ("So I'm signing CD's while police fingerprint me / They're for the judge's daughter but his grudge is against me / If I'm such a fucking menace, this shit doesn't make sense.").

While A-Nu thus respects Professor Long's voluminous scholarly work, and even more so his remarkable feat of sustaining a career as a law professor by writing about judges citing popular music lyrics, she suspects that in this particular instance he may have hyperextended his imagination a wee bit. (A-Nu also suspects Professor Long of having been in a band in high school that, sadly, never really took off; and of currently stowing a guitar underneath his bed, which he pulls out now and then "just to keep his fingers in shape"; and of perhaps even belonging to a law faculty band called "Midnight Oyez" or "Dire Estates" or something equally egregious. But she keeps such suspicions to herself.)

Anyway, A-Nu realizes that there is a tendency for those involved in the legal profession to engage in judge-worship, attributing massive significance to every blob of ink that dribbles out of an Article-III-appointee-owned pen. And A-Nu sympathizes: We lawyers are all just "dreaming away, wishing that heroes, they truly exist." (Britney Spears, Oops!...I Did It Again). But let's not make a vulgarity out of a lyric: enough with the drawn-out Roberts-Dylan intrigue, and, instead, we should acknowledge the reference as the mildly amusing and blatantly popularity-seeking aside the Chief Justice intended.

Humor, Part II: Wordplay

A-Nu acknowledges her weakness for wordplay of all sorts. She adores any sort of metaphor, conceit, double entendre, or the like, and puns are her very favorite. To wet blankets like Samuel Johnson, who derided the pun as the "lowest form of humor," A-Nu haughtily retorts that "a pun is its own reword." (She didn't actually think of that; some comedian whose name she can't remember did.) Anyway, A-Nu simply can't understand why more judges don't use puns: they're easy, fun, and will give your law clerks something to snigger about during their otherwise dreary lunches.

A-Nu must therefore give special credit to Judge Selya of the First Circuit. She knows that others’ views on Selya’s writing run the gamut, and she has a whole post, or maybe even a whole series, about Judge Selya in the works. Within the narrow confines of "Judicial Humor - Wordplay Division," however, she thinks Selya should take home top honors. (Of course, given the relative dearth of judicial wordplay, she recognizes that such an assessment is tantamount to remarking that an able-bodied individual would medal in the Special Olympics.) As an example of Selya's verbal dexterity, consider Mathewson Corporation v. Brad Foote Gear Works, 827 F.2d 850 (1st Cir. 1987). Describing Brad Foote Gear Works’ argument, Selya remarked that "Foote’s stance sidesteps the established principle," and therefore "does not toe the mark." Elsewhere, Foote "stumbled" and "put its best foot forward." Ultimately, Selya concluded that the contract did not allow Foote "to slip free of his laces," explaining, "[t]he shoe, fitting, must be worn."

A-Nu knows that some people have criticized Selya for making light of parties' plights by injecting humor into his rulings. The argument, as she understands it, is that Selya's verbal tomfoolery conveys to the parties that he didn't take their claims seriously. She supposes that there is a time and a place not to pun -- death penalty and child rape cases come to mind -- but she fails to see how a well-placed play on words detracts from the logic of an opinion, assuming said logic is otherwise sound.

Humor, Part I: Absurdity

Attractive Nuisance believes that one of the federal judiciary's major literary failings is its virtually nonexistent use of humor. She understands that justice is serious business, but fails to see why that noble purpose is inherently incompatible with employing a few instances of humor to enliven a ninety-page decision. She therefore offers the following five-part series intended to instruct and enlighten readers on the successful use of judicial humor, beginning today with a particularly underutilized category: absurdity.

One of A-Nu's favorite absurdist opinions of all time is Republic of Bolivia v. Philip Morris Companies, Inc., 39 F. Supp. 2d 1008 (S.D. Tex. 1999), in which Judge Kent explains why venue in the District of Columbia is more appropriate for a dispute involving the government of Bolivia. The opinion really needs to be read to be truly appreciated (and -- at an admirable three pages -- it aptly illustrates the maxim about brevity being the soul of wit). A few choice morsels, however, ought to whet the reader's appetite. Judge Kent explains: "The Court seriously doubts whether Brazoria County has ever seen a live Bolivian . . . even on the Discovery Channel. Though only here by removal, this humble Court by the sea is certainly flattered by what must be the worldwide renown of rural Texas courts for dispensing justice with unparalleled fairness and alacrity, apparently in common discussion even on the mountain peaks of Bolivia!"

And, inherent value of humor aside, Judge Kent skillfully employs absurdity to make a substantive legal point: no way should Bolivia be litigating in the Southern District of Texas, because -- as his absurdist humor demonstrates -- one has nothing to do with the other.

Hold the Latin

Attractive Nuisance associates Justice Souter with his rather dry prose, which, in his better opinions, is punctuated with a modicum of rather dry humor. Rothgery v. Gillespie County, No. 07-440, released today, is not such an opinion. Dryer than the most acidic of rieslings, the opinion reads like a treatise on the Sixth Amendment right of counsel, and note 14 is a behemoth of an unnecessary string cite enumerating precedent in forty-three states holding that a defendant's right of counsel attaches at the time of the defendant's first appearance in court. A-Nu feels slightly ill when she contemplates the talents of Supreme Court clerks being channelled into bluebooking each state's controlling case or statute, poring over these citations as though each one were a tiny impressionist poem.

But A-Nu wouldn't even feel compelled to blog about this case, except it contains a most offensive instance of gratuitous Latin: nolle prosequi, which, the interwebs tell A-Nu, means "do not pursue." This presumably refers to a decision the prosecutor might make about a charge against a particular defendant. But A-Nu thinks that, similar to most legal Latin, the interjection of a nolle prosequi actually signifies an author's intent to communicate the sentiment: "I am very smart; smart enough to use this Latin phrase in context."

A-Nu believes that Justice Souter's intelligence is widely acknowledged; she therefore considers it particularly unnecessary for him to employ phrases that the indigent defendant will have to spend hours trying to understand.

Figments of imagination

A-Nu could blog for days about the judicial preoccupation with the Garden of Eden. Judges are obsessed with entire array of characters and props: Adam, Eve, God, Satan, the apple, the serpent. What does it all signify? A longing for a simpler, more innocent time? A subconscious desire to blame everything on women? A mass judicial off-season craving for a tart juicy Macintosh?

For the sake of not biting off more than she can chew, however, A-Nu chooses to limit today’s post to a single corner of the garden: the much-vaunted fig leaf. For the most part, A-Nu regards this particular judicial fetish with approval and affection. She downright adores the many possibilities created by the imagery of the fig leaf and all its associations. A well-placed -- so to speak -- comparison of a particular argument to a fig leaf serves the dual purpose of pointing out the insufficiencies the argument while, more subtly, making the person who made the argument look silly.

Take, for example, Supreme Court's recent decision in CBOCS West, Inc. v. Humphries, 128 U.S. 1851 (May 27, 2008), which acknowledged legal recourse for employees who suffered retaliatory firing. A-Nu, however, found herself preoccupied with the evocative imagery of Justice Thomas' dissent: "[T]he Court today," Thomas wrote, "retreats behind the figleaf of ersatz stare decisis." Although A-Nu celebrates the Court's decision to accord rights to wronged workers, she cannot help but snigger at the mental image of the unclothed Justices Breyer, Souter, Ginsburg, Kennedy, Roberts, Alito, and Stevens collectively cowering behind a single (presumably large) fig leaf. She therefore applauds Justice Thomas's metaphorical triumph: after all, when one's argument is a little thin on the merits, and one is about to lose 7-2 anyway, a literary victory is certainly better than none at all.

Such fig-leaf-themed swipes by unhappy non-majority writers have blossomed in the Court in recent years. See, e.g., League of Latin American Citizens v. Perry, 548 U.S. 399, --- n.* (Roberts, J., dissenting in part) ("The majority's fig leaf . . . is to note the disparate needs and interests of these populations."); Stenberg v. Carhart, 530 U.S. 914, 1013 (Thomas, J., dissenting) ("The majority's insistence on a health exception is a fig leaf barely covering its hostility to any abortion regulation by the States."); City of Erie v. Pap's A.M., 529 U.S. 277, 307 (2000) (Scalia, J., concurring in the judgment) (in a case involving strippers, proclaiming that "[t]oday the Court would appear to drop even this fig leaf" with respect to prior requirements to avoiding mootness).

But the fig leaf theme is hardly unique to the Supreme Court. A-Nu has long observed Judge Posner’s literary love affair with the fig leaf. See, e.g., Pryor v. Seyfarth, Shaw, 212 F.3d 976 (7th Cir. 2000); United States v. Soderna, 82 F.3d 1370, 1374 (7th Cir. 1996). A personal favorite of hers is Pontarelli, Inc. v. City of Chicago, 929 F.3d 339, 342 (7th Cir. 1991), in which Posner extends the conceit by observing that “[f]igleaves are cheap; why therefore would a state or municipality ever fail to include a polite bow toward the public interest when it passed a measure that would otherwise stand exposed as a product of naked interest-group politics?” (emphasis A-Nu's).

Most memorably, in Miller v. City of South Bend, 904 F.2d 1081 (7th Cir. 1990) (a challenge brought by nude strip joints to an Indiana public indecency statute), Posner ruminates: "Because the dancers at the Kitty Kat Lounge are not professional dancers, because three of the four dances were not choreographed, because the music to which they dance is canned, and because the dancers sell drinks to the customers afterward, it is tempting to suppose that the ‘expressive elements of their ‘performance’ are phony – that the dance and the music are figleaves to conceal the absence of figleaves. Probably the supposition is erroneous; certainly it is not backed by evidence." Subtly, therefore, he accuses the more prudish dissenters of being overly influenced by the element of nudity (i.e., the absence of literal figleaves) into believing, wrongly, that the other elements of the performance are metaphorical figleaves.

But Judge Evans offers Posner a taste of his own medicine in his dissent in Crawford v. Marion County Election Board, 472 F.3d 949, 954 (7th Cir. 2007), which begins: “Let’s not beat around the bush: The Indiana voter photo ID law is a not-too-thinly-veiled attempt to discourage election day turnout by certain folks believed to skew democratic,” followed, not two paragraphs later, with a reference to the “fig leaf of respectability” – preventing voter fraud – ostensibly motivating the law. A-Nu thinks that the image of the legendary Posner fumbling around with bushes and fig leaves is enough to make his attempt to justify the voter ID law look at least a little ridiculous, and she also thinks may be exactly what the notably witty Judge Evans intended.

Courting enemies

It seems to A-Nu that this whole Guantanamo Bay thing has been dragging on for way too long. (She imagines that the "enemy combatants" who have hanging out at Guantanamo for the past six years might share her feelings.) So perhaps the monolithic proportions of the Supreme Court's decision today in Boumediene v. Bush, 2008 WL 2369628 (June 12, 2008) -- the gargantuan 134-page length; the pervasive density of citations to seventeenth-century precedent -- are a literary device intended to mirror the duration and magnitude of the debate over the nature of process due these alleged enemy combatants.

A-Nu is willing to give the Court the benefit of the doubt on this one. She is also willing (or at least much more willing than she usually is) to tolerate parsing of authorities such as the Magna Carta, Darnel's Case, and King v. Cowle (which, for readers who didn't get that far, discusses stuff that happened in 1759 in the highly influential jurisdiction of Berwick-upon-Tweed). But A-Nu feels that Justice Kennedy's majority opinion does itself a literary disservice by weaving a web of judicial arcana while ignoring the dispute's entanglement with the lives of living humans, both those walking the streets of American cities and those sitting in cells in Guantanamo.

The opinion begins: "Petitioners are aliens designated as enemy combatants and detained at the United States Naval Station in Guantanamo Bay, Cuba. There are others detained there, also aliens, who are not parties to this suit." In other words, the opinion begins with a pedantic statement of the totally, incontrovertibly obvious. Everyone who hasn't been hunkered down in a walled compound for the past six years already knows there are folks being detained at Guantanamo who are suspected of doing vaguely-defined bad stuff. Indeed, A-Nu has reached a point where the very phrase "enemy combatant" makes her writhe about in anticipation of impending boredom and repetition of stuff she already knows.

Instead, she wishes Justice Kennedy (and the other members of the majority, too -- although A-Nu usually focuses on authoring judges, she happens to think that if you join an opinion you're accountable for its content) would tell us something we don't already know. Like, who is Boumediene? What did he do? What happened to him? Why is he sitting in a cell? How long has he been there? Does he have a wife and children, somewhere, waiting for him to come home? We finish reading the opinion (those of us who do actually manage to finish) with no idea whatsoever who Boumediene is.

Mohamed Nechla, another detainee-petitioner, is Kennedy's lone individualized example of consequences of denying habeas review. Which is a shame, because his example, limited as it is, humanizes the dispute. Nechla's employer was unavailable at the time of his military hearing to testify to his lack of affiliation with Al Qaeda and has now become available; the employer's testimony would be inadmissible under the statutorily prescribed process but potentially available in a habeas proceeding. A-Nu wonders how many other petitioners have similar stories. She wishes she knew.

Kennedy's opinion appears particularly abstract and depersonalized when compared with Justice Scalia's blunt and specific description of the "disastrous consequences" he predicts will flow from the majority opinion. "America is at war with radical Islamists," Scalia writes, following this bald statement with a tally of American lives lost in terrorist attacks on both foreign and domestic soil, including the 2,749 who died in the World Trade Center tragedy. "Last week," he reminds us, rooting the dispute firmly in the here and now, "13 of our countrymen in arms were killed." The parade of horribles continues with the account of a released detainee who later "masterminded the kidnapping of two Chinese dam workers, one of whom was later shot to death when used as a human shield against Pakistani commandoes." And he plants the opinion squarely at the center of our everyday lives, reminding us that "one need only walk about buttressed and barricaded Washington, or board a plane anywhere in the country, to know that the threat [of terrorist activity] is a serious one."

To Kennedy's credit, perhaps the abstraction of his opinion is an affirmative defense against the dissenters' charge of judicial activism. By arraying his opinion in the armor of ancient precedent and Founders' writings, Kennedy preemptively rebuts Justice Roberts's dissenting malediction that the majority opinion is really "about control of federal policy regarding enemy combatants" and Justice Scalia's accusation of "an inflated sense of judicial supremacy."

But A-Nu sees the situation differently. After all, once Scalia gets past his opening dramatics, his opinion exudes Founder-veneration and wallows in the parsing of ancient opinions. His thesis is that he knows what the Founders were thinking in 1789, and it didn't involve extending habeas protection to "enemy combatants" in Guantanamo. His dissent, in other words, is a dry, historical analysis, against which the opening parade of horribles appears alarmist and unrelated to the ensuing arguments.

A-Nu, consequently, thinks that Justice Kennedy missed out on two literary opportunities. First, he missed out on a chance to call out Justice Scalia on his histrionics, when all the Scalian frothing at the pen is blatantly divorced from Scalia's actual legal analysis. More importantly, Kennedy missed out on an opportunity to enliven the majority opinion with humanizing details about the humans whose futures are at stake, when such details are actually germane to the majority's legal analysis: What is habeas about, if not protection of the individual against government tyranny? A-Nu can only hope that future courts, engaged in future habeas proceedings, will not similarly fail to overlook the powerful literary impact of the particular.

Vacation of judgment

It's not unusual for judicial opinions to make Attractive Nuisance feel very, very sleepy. But with today's Seegmiller v. Laverkin City, No. 07-4096 (10th Cir. June 10, 2008), Judge Tymkovich serves up the judicial equivalent of a bottle of Tylenol PM chased down with a generous handful of Ambien. As a service to any readers suffering from insomnia, A-Nu has helpfully isolated one of Seegmiller's primary yawn-inducing features, which she likes to think of as the "nounified verb."

Now, don't misinterpret A-Nu's comments as linguistic bigotry: A-Nu is cool with the fact that certain words might swing different ways depending on the circumstances. If a noun wants to get all gussied up and mince around as an adjective for an evening, far be it from her to pass judgment. She fails to comprehend, however, why legal professionals in general, and judges in particular, insist on taking a perfectly healthy and active verb and tacking on an "-ation," leaving behind a feeble and enervated noun.

In Seegmiller, for instance, Tymkovich talks about a jilted husband's "recantation" of "allegations" he made up about his ex. Come on: recantation? Why not say the husband recanted the things he alleged? The opinion then explains that a reprimand from the plaintiff's employer led to her "eventual resignation" from her job. Why not say she resigned? Instead of saying the plaintiff alleged "violations" of her constitutional rights, why not say she alleged that the defendants violated her rights? Instead of saying the Fourteenth Amendment "provides protection" against certain government actions, why not say it protects? Rather than referring to the "recognition of a broad notion of privacy," why not say that the Supreme Court has recognized such a broad notion?

A-Nu could give a few dozen more examples from Tymkovich's soporific specimen, but she thinks that she's made her point. Verbs keep the action moving, and nounifying everything brings the momentum to a grinding halt. Sure, the nounification saves the trouble of having to come up with a subject to go with the verb -- but especially in the legal context, A-Nu always thinks it's better to be clear about who's doing what.

But it's late, and A-Nu is off to bed. Somehow she doesn't think she'll be needing that glass of warm milk.

Well-written: Judge Wilkinson

In Waybright v. Frederick County, No. 07-1289 (4th Cir. June 2, 2008), Judge Wilkinson tells the "terribly sad" story of a twenty-three-year-old would-be firefighter who died of heat exhaustion during a grueling outdoor training exercise. He shatters the bereaved parents' section 1983 hopes, yet does so with such linguistic mastery that even A-Nu (who has a notorious soft spot for both section 1983 plaintiffs and firefighters) feels obliged to sing the opinion's praises.

First of all, the opinion is splendidly written. It doesn't read like an opinion. It reads like a short story. The sentences are succinct. The adjectives are well-chosen and evocative. The passive voice is nowhere to be found. Consider the starkness of the very first sentence: "Andrew Waybright died by accident while training to join the Frederick County Fire Department in Maryland." (A-Nu can think of many a judge who would have rejected this hard-hitting introduction in favor of some truly conscience-shocking verbiage, such as: "This case comes to us on appeal from a judgment against plaintiff, whose substantive due process claims against all defendants were denied by the district court.")

A-Nu acknowledges that Wilkinson can't take all the credit for the storytelling: the narrative of an aspiring young firefighter collapsing, struggling to his feet, insisting he wants to finish the training exercises with his class, and ultimately going into cardiac arrest is inherently compelling. So the true testament to Wilkinson's writing is that the opinion remains just as gripping once he starts laying down the law.

Part of this feat resides in the richness and variety of the vocabulary. The case "ballooned" as plaintiffs added more claims and more defendants. The Supreme Court "spurned" a Fourteenth Amendment jurisprudence that would mimic tort law. Federal judicial oversight of matters traditionally left to the states is cause for "disquiet."

Wilkinson also demonstrates the power of the well-chosen example. He notes the "potentially staggering consequences of empowering federal judges to oversee everything from pillows left on prison stairs to sewer maintenance." Later, he cautions against allowing a federal claim whenever an accident takes place during state-sponsored activities: "[B]y finding a state-created danger here, we might well inject federal authority into public school playground incidents, football (or even ballet) practice sessions, and class field trips."

And rather than the typical drooled "we therefore affirm the judgment of the district court," Wilkinson instead graces us with a few well-chosen thoughts on the larger context. He explains: "In part, this case is sad because of the tragedy that set it into motion. But it is sad also because of the long legal detour that stilled all progress on the merits while federal courts necessarily rebuffed the prospect of federal law taking over the traditional office of the states."

A-Nu swoons: With that kind of linguistic artistry, Wilkinson could just about persuade her to do away with constitutional tort claims altogether.

Not so perfect

Attractive Nuisance has gradually resigned herself to the fact that not everyone cares about the English language as much as she does. In her more militant youth, she went around adding apostrophes to signs that had a few too few, and glowering at people who told her that they "could care less" about something and then expected her to respond as though they had just said something intelligible. Memorably, she once terminated a relationship after her man-friend pronounced himself "really into spontanuity."

In recent years, though, A-Nu has mellowed a little. Just the other day she walked past a sign advertising "taco's and burrito's" without even needing to pop a Xanax. When someone concludes a sentence with "eck-cetra," A-Nu now nods understandingly rather than proffering a cough drop. And if people really feel the need to fucking split their infinitives, A-Nu has more important things to do than to try and stop them.

But despite her increasing tolerance for the linguistic shortcomings of the population at large, A-Nu is unwilling to let the judiciary off the grammatical hook. And one thing that's been bothering her recently is that so many judges feel compelled to encumber absolute adjectives with comparative and superlative baggage.

Allow A-Nu to provide an example. Things are either perfect or imperfect. Nothing can be "more perfect," "so perfect," "really perfect," "absolutely perfect," or "the most perfect." It's binary: you either got that 180 on the LSAT, or else you didn't.

Yet, dissenting in Planned Parenthood of Southeast Pennsylvania v. Casey, 505 U.S. 833, 975 (1992), Chief Justice Rehnquist runs afoul of this rule: "[I]t is unrealistic to assume that every husband-wife relationship is (1) so perfect that this type of truthful and important communication will take place as a matter of course, or (2) so imperfect that, upon notice, the husband will react selfishly, violently, or contrary to the best interests of his wife." If the former C.J. were not deceased (note, readers, that A-Nu does not refer to him as "so very deceased" or "totally deceased") she would likely have a bit more to say. But even A-Nu believes that dead legal luminaries deserve a modicum of respect, and anyway, she thinks his helpful (albeit inadvertent) example requires no further explanation.

The rule of absolutes applies in all sorts of other situations. No matter how wacked-out a party's argument is, judges should refer to it as "unique" -- not "so unique," "very unique," or "the most unique this Court has ever encountered in its three decades on the bench." Because that argument is either one-of-a-kind, or else it's not. The same goes for all things pure, universal, immortal, certain, fatal, essential, final, and meaningless. And was Justice Thomas' silence on the bench this term "so unbroken"? No! It was just plain unbroken!! Unless, of course, he went and said something while A-Nu wasn't paying attention (just like last time, that death penalty case back in February 2006) -- in which case the aforementioned silence wasn't unbroken at all.

Latin Lovers

A-Nu confesses to being a wee bit overly sensitive to a whole slew of linguistic irritants. But she thinks she is entirely justified in flying into a rage over a huge steaming pile of gratuitous Latin plopped down right in the middle of an otherwise respectable judicial opinion. Of all the abominably pretentious and offensive customs unique to the legal profession, A-Nu views Latin fetishism as by far the most atrocious.

The Fifth Circuit recently handed down a prime example of the noxious phenomenon to which A-Nu refers: Kadlec Medical Center v. Lakeview Anesthesia Associates, 2008 WL 1976591 (5th Cir. May 30, 2008). Nothing in the opinion suggests that linguistic travesty was a foregone conclusion. Indeed, the facts read rather like an Oprah's Book Club selection: a Demerol-popping anesthesiologist botches a routine fifteen minute tubal ligation, consigning his young and beautiful (at least in A-Nu's fertile imagination) patient to a permanent vegetative state.

Judge Reavley, however, apparently views this gripping human drama as a mere sideshow in a veritable circus of Latin words and phrases. A-Nu can tolerate -- just barely -- the use of "ex ante" and "respondeat superior" (although she still fails to understand why "before the fact" and "supervisor liability" won't do). But the repeated references to motions "in limine" absolutely kill her: it's one of those expressions that lawyers use to make lay folk think that lawyers are really smart, but A-Nu thinks everyone should quit showing off already and just talk about the motions they filed before trial started.

Even more offensive is the blithe reference to the judgments against two of the defendants being "in solido" with that of a third defendant. Despite having a degree from a fancy law school, A-Nu has no fucking clue what in solido means, which strongly suggests that neither the vegetative patient nor her (presumably handsome and heartbroken) husband will get it either.

The opinion then hits rock bottom, in A-Nu's view, with its explanation that the anesthesiologist was employed as a "locum tenens" -- which, as Reavley parenthetically notes, translates to "travelling doctor." What, there wasn't enough Latin in the opinion already, so it was necessary to import some from the medical profession?

But no need to continue ad nauseum: A-Nu rests her case.

Ripe for review

Just go with A-Nu on this one: she has been noticing for quite some time that the federal judiciary is a tad obsessed with fruit, and feels that this inexplicably unexamined trend could stand a bit of investigation.

Most obviously, the Supreme Court has created an entire fruit-themed doctrine: that of the "fruit of the poisonous tree," which requires the exclusion of evidence (i.e., the fruit) obtained as a result of evidence that was itself illegally obtained (i.e., plucked from the poisonous tree). The Supreme Court first alluded to the doctrine in 1942 (see Goldstein v. United States, 316 U.S. 114, 126 (1942) (Roberts, J.)), but, tragically, the judiciary has made little use of the doctrine as a literary device.

True, a few plum examples may be found. See, e.g., Anderson v. Calderon, 232 F.3d 1053 (9th Cir. 2000) (McKeown, J., dissenting) (claiming that certain FoPT evidence should have been excluded because "[i]n this instance the apple does not fall far from the tree"); McSurely v. McClellan, 473 F.2d 1178, 1201 (D.C. Cir. 1975) (Matthews, J.) ("While courts may refuse to allow their criminal processes to become tainted by eating 'the fruit of the poisonous tree,' it would be folly to forbid Congressional knowledge that bad apples exist."). But sadly, such instances are the exception rather than the rule, though not for lack of judicial opportunities. Indeed, A-Nu wonders how the judges in United States v. Apple, 915 F.2d 899 (4th Cir. 1990), and United States v. Berry, 670 F.2d 583 (5th Cir. 1982) -- both FoPT cases -- managed to refrain from even a single fruit-related double entendre. A-Nu theorizes that this is what is meant by judicial restraint. But even while she marvels at the self-control of Judges Phillips and Johnson, she simultaneously wonders whether it would have been so very improper for these august figures to enliven their dogged thirty-page doctrinal analyses with a fruit-related pun or two. ("Binding precedent requires us to exclude from our courtroom the fruits that law enforcement has harvested illegally -- excepting, of course, Apple herself.")

Other fruit-related references, however, abound. Most recently, in Department of Revenue of Kentucky v. Davis, 128 S. Ct. 1801, 1821 (May 19, 2008), Justice Scalia's concurrence in part argues for abandoning Pike balancing altogether, likening what he views as a "quintessentially legislative enterprise" to "deciding whether three apples are better than six tangerines." (Sadly for those who might wish to send him a holiday basket, he fails to clarify which fruit he views as a burden and which a benefit.) And in his dissent in the notorious City of Erie v. Pap's A.M., 529 U.S. 277, 325 (2000), Judge Stevens criticizes the majority for ignoring the distinction between cases dealing with the "secondary effects" of speech and cases in which strong government interest justify "incidental burdens" on speech: "One can think of an apple and an orange at the same time; that does not turn them into the same fruit."

Judge Selya, noted fruit connoisseur of the First Circuit, has authored around 120 fruit-referential opinions (averaging more than five each year of his twenty-two-year appellate tenure). In Conward v. Cambridge School Committee, 171 F.3d 12, 20 (1st Cir. 1999), for instance, he serves up a veritable smoothie in a disparate treatment race discrimination case. Explaining that the plaintiff must show that others similar situated to him were treated differently by an employer, Selya observes that "apples should be compared with apples"; citing differences between plaintiff and his proffered comparison points, however, Selya notes that the plaintiff "foreswore apples and presented the district court with two persimmons and a pear." Likewise, a fraud/misrepresentation suit against a college, in which plaintiffs presented only limited evidence of the school's shortcomings, engendered Selya's sage observation: "Showing that one tree has borne no fruit does not prove that an entire apple orchard is barren." Ambrose v. New England Assoc. of Schs. & Colls., 252 F.3d 488, 497 (1st Cir. 2001).

Judges not infrequently refer to making lemonade from lemons -- mostly in the context of pointing out that parties have failed to convert bad arguments into good ones. See, e.g., HA2003 Liquidating Trust v. Credit Suisse Securities, 517 F.3d 454, 458 (7th Cir. 2008) (Easterbrook, J.). Judge Kozinski, during his youthful gallivanting on the Court of Claims, went the opposite route, observing that attempting to disentangle the litigation history of a complex case was "not unlike trying to make lemons out of lemonade." Florida Rock Indus. v. United States, 9 Ct. Cl. 285, 289 (Ct. Cl. 1985). But while A-Nu lauds these citrusy efforts by the judiciary, she deeply regrets that (at least as far as she can discern from semi-diligent searching), not a single judge has employed the lemonade-from-lemons trope in conjunction with a certain seminal Establishment Clause case.

A-Nu could go on and on, and perhaps she will in a later post, but she feels no need to scrape the bottom of the barrel just now. She hopes, however, that her brief foray into fruit jurisprudence will inspire more widespread examination of this sorely neglected topic.

Welcome to the slaughterhouse

Way back in the day, when Attractive Nuisance was a mere welp of an undergrad, her favorite English professor mentioned that one of his friends taught writing at a nearby law school, likening that vocation to "practicing veterinary medicine at a slaughterhouse." A-Nu chortled derisively along with the rest of the class, blissfully unaware that she herself was headed (albeit by a rather circuitous route) for the jurisprudential butcher shop.

One might think that three years at a top ten law school, a stint clerking for a federal appellate judge, and far too long in legal practice might have accustomed A-Nu to the linguistic carnage she encounters on a daily basis. But one would be sorely mistaken. Remarkably, A-Nu retains her ability to take offense at an ambiguous pronoun, to grind her teeth over a misplaced modifier, and to rant inarticulately whenever some hapless soul uses the expression "between the three of us" in her presence.

These petty syntactical crimes, however, pale in comparison to what A-Nu views as the ongoing linguistic genocide perpetrated by the legal profession. She refers, of course, to the immense corpus of legal writing that, while not actually in violation of any technical rule of grammar, is nonetheless wordy, rambling, repetitive, incomprehensible, badly organized, nauseatingly rife with Latin, unnecessarily convoluted, too damn long, and/or just unbelievably fucking dull.

Never one to be parsimonious when allocating blame, A-Nu notes that law students, lawyers, and professors all have blood on their hands from daily injuries caused to the English language. But the identity of the chief culprits is clear: after all, it's judges who spew out the pages upon appalling pages of tortured linguistic detritus that the law students must study, the lawyers must cite, and the professors must . . . well, must do whatever it is, exactly, that professors do when they read a case. It's judges, therefore, are responsible for the current sorry state of legal writing, and it's judges who have to step up and take responsibility for mopping up the slaughterhouse floor.

In A-Nu's (admittedly biased) view, the need for a blog about judicial writing is clear, and Word of the Court aims to fill that void by illuminating the good, the bad, and the ugly in written judicial decisions. A-Nu plans to give kudos where deserved, and criticism (both constructive and harsh) where warranted. So welcome to the slaughterhouse: A-Nu looks forward to serving as your veterinarian.