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.