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.