Federal Appellate Judge Makes Soap Opera of Ordinance Dispute

strange judicial opinion detergent brands

A washing machine laughing hysterically at Judge Brown's opinion.

In 1973, the Fifth Circuit struck down a Dade County detergent labeling ordinance, finding that the ordinance, intended to reduce pollution from ingredients found in household detergents, was preempted by the Federal Hazardous Substance Labeling Act.

Chief Judge John Brown concurred, managing to work in the brand names of just about every detergent product available, becoming a humorous opinion-writing path-breaker.

Let us know if we’re wrong, but Judge Brown’s opinion–published in 1973–may be the first overtly intentional effort by a federal court of appeals judge to write a clever and funny opinion.  It’s a lot easier for a state judge to get away with being amusing than a federal judge, certainly a court of appeals judge.

So, while the opinion isn’t particularly hilarious, Judge Brown’s boldness and innovation gets this case into the Strange Judicial Opinions Hall of Fame.

Here’s a taste of his detergent-filled ruling (italics inserted):

As Proctor of this dispute … the Court holds that Congress has specifically preempted regulatory action by Dade County. Clearly, the decision represents a Gamble since we risk a Cascade of criticism from an increasing Tide of ecology-minded citizens. Yet, a contrary decision would most likely have precipitated a Niagara of complaints from an industry which justifiably seeks uniformity in the laws with which it must comply. Inspired by the legendary valor of Ajax, who withstood Hector’s lance, we have Boldly chosen the course of uniformity in reversing the lower Court’s decision upholding Dade County’s local labeling laws. And, having done so, we are Cheered by the thought that striking down the regulation by the local jurisdiction does not create a void which is detrimental to consumers ….

And so we hold. This is all that need be said. It is as plain as Mr. Clean the proper Action is that the Dade County Ordinance must be superseded, as All comes out in the wash.

Chem. Specialties Mfrs. Ass’n v. Clark, 482 F.2d 325, 328–29 (5th Cir. 1973) (Brown, C.J., concurring). Thanks to Craig A. Wilson.

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Andrew Jay McClurg is a law professor whose teaching and research interests include tort law, products liability, legal education, privacy law and firearms policy. He holds the Herbert Herff Chair of Excellence in Law at the University of Memphis Cecil C. Humphreys School of Law.
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