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 slate.com, 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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