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.