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Electronic copy available at: http://ssrn.com/abstract=1297311
Journal
Journal
JULY/AUGUST 2004 | VOL. 76 | NO. 6
Inside
Inside
First Sale vs. Fair Use
Responses to Juvenile Crime
Court-Appointed Law Guardians
Varied Roles of Judges’ Clerks
Developing Theory of the Case
BAT MASTERSON vs.
BENJAMIN CARDOZO
BAT MASTERSON vs.
BENJAMIN CARDOZO
NEW YORK STATE BAR ASSOCIATION
Electronic copy available at: http://ssrn.com/abstract=1297311
64 Journal | July/August 2004
some eyes, his task might be
regarded as hubris on the scale of
the Tower of Babel. He repented,
lamenting: “I have sinned very
much in what I have done; But I
pray thee O Lord, to take away the
iniquity of thy servant because I
have done exceedingly foolishly.”
The Lord turned a deaf ear for he
sent David a pestilence and 70,000
died.
6
One federal judge quoted the
entire theme song of the 1960s TV
show Gilligan’s Island in footnote one,
and began as follows: “‘Just sit right
back and you’ll hear a tale’ of what
happened when David Reuther,
while vacationing in the Cayman
Islands at the Pirates Point Resort
hotel, decided to go SCUBA diving
— ‘a fateful trip that started from this
tropic port, aboard this tiny ship.’”
7
Movies, too, attract opinion writ-
ers. One court far, far away from
New York, joined the dark side by
dwelling on Star Wars:
The study of prisons and the pro se
litigants who inhabit them is like the
study of astronomy or even science
fiction. The explorer of the world of
prisons and pro se plaintiffs embarks
upon a fantastic voyage into another
world, even another galaxy, far, far
away. Prisoners protect themselves
with the laser-light power of their
constitutional rights. Prison officials
shield themselves with administra-
tive autonomy. Both sides have
power, but both must exercise
restraint, lest they give in to the dark
side of the force.
8
This federal opinion opened with
a history lesson:
Plutarch, the great biographer,
recounts the battle between the foot
soldiers of Pyrrhus, king of Epirus,
THE LEGAL
WRITER
According to one master opinion
writer, “Literature, poetry, popular cul-
ture and other art forms can be worked
effectively into opinion writing.”
1
One
example of blending literature with
opinion writing comes from the New
York Family Court, which relied on
Invisible Man, Ralph Ellison’s novel
about racism in America, to issue an
order the court itself said it had no
jurisdiction to issue.
2
Another is from
the New York Supreme Court, which
drew from Shakespeare’s King Lear to
condemn two children who cheated
their mother: “How sharper than a ser-
pent’s tooth it is to have a thankless
child.”
3
Many U.S. Supreme Court opinions
contain art forms. Often the art over-
takes the opinion, as in Flood v. Kuhn,
4
which lists 88 baseball greats and foot-
notes two baseball verses in exempting
baseball from antitrust laws.
This is from one judge of the law-
and-economics school: “The Grateful
Dead play rock music. . . . Wherever
the Dead appear, there is a demand for
LSD in the audience. Demand induces
supply. Vendors follow the band
around the country; law enforcement
officials follow the vendors.”
5
Another
federal judge, from Brooklyn, opened
with a Bible lesson:
Census-taking has never been easy,
and has rarely received favorable
press. King David learned this the
hard way. In First Samuel, the King
directed his Census Bureau, one
Joab, to “go through all the tribes
of Israel From Dan to Bersabee, and
number ye the people that I may
know the number of them.” When
Joab had reluctantly counted as far
as 800,000, David realized that, in
and the Romans at Asculum in 280
B.C. Six thousand Romans were
felled that day. Pyrrhus lost three
thousand of his own troops.
According to Plutarch, when advised
that he had won the battle, Pyrrhus
reportedly replied in so many words:
“Another such victory and I am
undone.” In this case, history will
recount that, like Pyrrhus, plaintiffs
won a battle, but lost the war.
9
Cinderella is popular with opinion
writers who enjoy using literary refer-
ences for metaphoric comparison.
This, from New York, is elegant: “A
Judge of this State who crosses a State
line instantly undergoes a transforma-
tion as dramatic as Cinderella’s mid-
night metamorphosis.”
10
But this, from
the Federal Circuit, is forced: “The lan-
guage of this statute is as clear as a
glass slipper, there is no shoehorn in
the legislative history, and the govern-
ment, just as surely as Cinderella’s
step-mother, cannot make the fit.”
11
Other opinions incorporate fairy
tales. From the First Circuit: “In the
end, Aoude huffs and puffs, but he
fails to blow down the edifice which
the district court competently con-
structed from the facts of record and
the applicable law. Cf. The Three Little
Pigs 16–18 (E. Blegvad ed. 1980) (house
three).”
12
From the D.C. Circuit: “Like
the Emperor’s new clothes, the
Sentencing Guidelines are a bit of a
farce.”
13
Mores and culture affect
decision making. But
judges should be wary
of airing their erudition.
CONTINUED ON PAGE 61
A Pox on Vox Pop
BYGERALD LEBOVITS
S
hould judges veto vox populi in
opinion writing?
Journal | July/August 2004 61Journal | July/August 2004 61
Most often, art forms result in
banalities, like the federal opinion that
irrelevantly, even flippantly, used lines
from the Saturday Night Live “Wayne’s
World” skits and the 1992 hit movie,
Wayne’s World: “In short, Prime Time’s
most bogus attempt at removal is ‘not
worthy’ and the Defendants must
‘party on’ in state court.”
14
Or the
Ninth Circuit’s Vanna White opinion,
which wished they could all be
California girls: “[A]n attractive
appearance, a graceful pose, blond
hair, an evening gown, and jewelry are
attributes shared by many women,
especially in Southern California.”
15
Or the New Jersey Supreme Court’s
Bruce Springsteen “Born to Run” opin-
ion: “Fleming claims that despite the
difficulty of working in a prison, she
remained the kind of person who ‘[a]t
the end of every hard earned day . . .
[found] some reason to believe.’”
16
Springsteen isn’t the only musician
lionized in the judicial reports. In United
States v. Youts,
17
the Tenth Circuit used
four footnotes to venerate John Denver
and the Grateful Dead in a criminal
prosecution for train wrecking.
Judges should know something
about the classics, not merely about
popular culture. Here’s why, from
Learned Hand: “[A] judge [must] have
a bowing acquaintance with Acton and
Maitland, with Thucydides, Gibbon
and Carlyle, with Homer, Dante,
Shakespeare and Milton, with
Machiavelli, Montaigne and Rabelais,
with Plato, Bacon, Hume and Kant ....
[E]verything turns upon the spirit in
which he approaches the questions
before him.”
18
Mores and culture affect decision
making. Judge Hand was right: The
more learned the judge, the better the
opinion. But judges should be wary
of airing their erudition. Knowing
about pop culture or the classics is
different from including them in a
judicial opinion.
G
ERALD
L
EBOVITS
is a judge of the
New York City Civil Court, Housing
Part, in Manhattan. An adjunct pro-
fessor at New York Law School, he
has written Advanced Judicial Opinion
Writing, a handbook for New York’s
trial and appellate courts, from which
this column is adapted. His e-mail
address is GLebovits@aol.com.
1. Ruggero J. Aldisert, Opinion Writing
196 (1990).
2. In re Carlos P., 78 Misc. 2d 851, 358
N.Y.S.2d 608 (Fam. Ct., Kings
County 1974) (Gartenstein, J.).
3. Mileski v. Locker, 14 Misc. 2d 252,
257, 178 N.Y.S.2d 911, 917 (Sup. Ct.,
Queens County 1958) (Pette, J.).
4. 407 U.S. 258 (1972) (Blackmun, J.).
5. United States v. Dumont, 936 F.2d
292, 294 (7th Cir.) (Easterbrook, J.),
cert. denied, 502 U.S. 950 (1991).
6. City of New York v. United States Dep’t
of Com., 739 F. Supp. 761, 762
(E.D.N.Y. 1990) (McLaughlin, J.).
THE LEGAL WRITER
CONTINUED FROM PAGE 64
7. Reuther v. Southern Cross Club, Inc.,
785 F. Supp. 1339, 1340 (S.D. Ind.
1992) (Barker, J.).
8. Carter v. Ingalls, 576 F. Supp. 834, 835
(S.D. Ga. 1983) (Bowen, J.).
9. O’Shea v. City of San Francisco, 966
F.2d 503, 504 (9th Cir. 1992) (Beezer,
J.) (footnote omitted).
10. People v. Craig, 151 Misc. 2d 442, 445,
581 N.Y.S.2d 987, 989 (Sup. Ct.,
Bronx County 1992) (Eggert, J.).
11. Brush v. Office of Personnel Mgmt.,
982 F.2d 1554, 1559 (F. Cir. 1992)
(Smith, J.).
12. Aoude v. Mobil Oil Corp., 862 F.2d
890, 890–91 (1st Cir. 1988) (Selya, J.).
13. United States v. Harrington, 947 F.2d
956, 964 (D.C. Cir. 1991) (Edwards,
J., dissenting) (telling the story
from Hans Christian Andersen,
The Emperor’s New Clothes
(Pictureback ed., Random House
1978)).
14. Noble v. Bradford Marine, 789 F. Supp.
395, 397 (S.D. Fla. 1992) (Paine, J.).
15. White v. Samsung Elect. Am., Inc., 971
F.2d 1395, 1405 (9th Cir. 1992)
(Alarcon, J., concurring & dissenting).
16. Fleming v. Correctional Healthcare
Solutions, Inc., 164 N.J. 90, 99–100,
756 A.2d 1035, 1040 (2000) (per
curiam) (alteration in original)
(quoting Bruce Springsteen,
“Reason to Believe,” on Nebraska
(Sony/Columbia 1982)).
17. 229 F.3d 1312 (10th Cir. 2000)
(Seymour, C.J.).
18. Learned Hand, quoted in N.Y.
Times, Nov. 18, 1954, Mag. at 14
(reprinted in Henry J. Abraham, The
Judicial Process 61 (7th ed. 1998)).