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.