Wednesday, April 27, 2016

TMFW 138 - The Judiciary Gets in on the Act (Part 2)

This week's entry is a continuation of last week's theme of judges getting creative with musical opinions.  And unlike the Taylor Swift and Eminem opinions from that entry, today's story is a bit more sneaky.  
The opinion in question is the 1987 decision from the federal Fifth Circuit Court of Appeals in the case United States vs. Abner.  (The lawyerly citation is U.S. v. Abner, 825 F.2d 835 (5th Cir. 1987).)  The case deals with whether a criminal defendant had effective assistance of counsel at trial - pretty dry stuff that has nothing to do with music.  What makes it today's TMFW is that the opinion sneaks in 19 different Talking Heads song and/or album titles
If you Google around about the case, you may get the impression that a judicial clerk wrote the opinion (allegedly to score free tickets to a Talking Heads show) and that judge Reynaldo Garza didn't recognize the myriad song references when he reviewed and signed the opinion.  But in a 1990 interview with Indiana University Law School's The Exordium newsletter (link goes to .txt file), the law clerk who wrote the opinion clarified the story.  
The opinion's author Steve Riggs explained: "When the Fifth Circuit would sit for arguments, we'd be in New Orleans, and the clerks would go out with some of the other judges at dinner. One night, I got to ask Judge [E. Grady] Jolly about a footnote he had dropped which made an uncited reference to Absalom, Absalom! by William Faulkner.  He got the biggest chuckle out of the fact that I had noticed. He said that he tries to zip up legal writing and encouraged Judge Garza to do the same...[when it came time to write the Abner opinion], I told him what Jolly had done with Faulkner, and asked him if we could do the same thing with popular song titles...The Judge said it was fine as long as the opinion was 'intellectually coherent and makes good sense.' The Judge got a terrible kick out of it."  
As it turns out, the Abner opinion was Riggs' last as a law clerk.  So his musical writing was a once in a lifetime event.   
BONUS FACT:  Like the dinosaur named after Mark Knopfler in TMFW 45, I started this entry last week thinking that my examples were noteworthy for their uniqueness.  But after research I have discovered that music lyrics in legal opinions are common enough that they inspired a law review article analyzing their use.  (Not unlike the scholarly article breaking down Jay-Z's "99 Problems" that was featured in TMFW 99.)
BONUS FACT 2:  On the subject of judicial opinions and burning down the house, I enjoyed this report of a tax decision in Virginia.  A family bought a house that they intended to tear down, but to save themselves the trouble they allowed the local fire department to do a "training exercise" with it that involved burning it to the ground.  The family then wrote off the value of the house as a charitable deduction on their taxes.  The IRS didn't like that and it went to court.  (You will not be surprised that the taxman won.)  
BONUS FACT 3:  The federal Ninth Circuit Court of Appeals judge Alex Kozinski is famously playful in his opinions, and is an excellent writer.  In 1990, Kozinski wrote the opinion on a case dealing with alleged antitrust violations at a movie theater chain.  He took the opportunity to cram the opinion with over 200 movie titles.  
BONUS FACT 3.5:  Back in the infancy of, the site featured a series called "Slate Diaries," which was a series of entries by noteworthy people.  In 1996 (ANCIENT in internet years), Judge Kozinski did a 10-part diary.  You can read Day 1 here, and the rest by clicking "view all entries" and selecting a day.  I particularly like his Day 8 entry, which gives a little glimpse of daily life as a judge and a good story about he keeps things in perspective.

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