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.