Back in 2003, in McConnell v. Federal Election Committee, the U.S. Supreme Court cleared up a major legal dispute over campaign financing. Er, well, maybe not completely cleared up.
The basic question was whether the McCain-Feingold Act, a federal statute that imposed restrictions on political contributions, violated the First Amendment free speech rights of potential contributors. A challenging issue no doubt, but certainly not too tough for the mighty U.S. Supreme Court to resolve, right?
With nine justices voting, the result could have been as simple as 8-1, 7-2, 6-3, or 5-4 in favor of one side or the other. The nine wise ones chose a slightly more complicated path. Here is the Court’s actual voting lineup straight out of the case:
STEVENS and O.CONNOR, JJ., delivered the opinion of the Court with respect to BCRA Titles I and II, in which SOUTER, GINSBURG, and BREYER, JJ., joined. REHNQUIST, C. J., delivered the opinion of the Court with respect to BCRA Titles III and IV, in which O.CONNOR, SCALIA, KENNEDY, and SOUTER, JJ., joined, in which STEVENS, GINSBURG, and BREYER, JJ., joined except with respect to BCRA § 305, and in which THOMAS, J., joined with respect to BCRA §§ 304, 305, 307, 316, 319, and 403(b). BREYER, J., delivered the opinion of the Court with respect to BCRA Title V, in which STEVENS, O.CONNOR, SOUTER, and GINSBURG, JJ., joined. SCALIA, J., filed an opinion concurring with respect to BCRA Titles III and IV, dissenting with respect to BCRA Titles I and V, and concurring in the judgment in part and dissenting in part with respect to BCRA Title II. THOMAS, J., filed an opinion concurring with respect to BCRA Titles III and IV, except for BCRA §§ 311 and 318, concurring in the result with respect to BCRA § 318, concurring in the judgment in part and dissenting in part with respect to BCRA Title II, and dissenting with respect to BCRA Titles I, V, and § 311, in which opinion SCALIA, J., joined as to Parts I, II.A, and II.B. KENNEDY, J., filed an opinion concurring in the judgment in part and dissenting in part with respect to BCRA Titles I and II, in which REHNQUIST, C. J.,joined, in which SCALIA, J., joined except to the extent the opinion upholds new FECA § 323(e) and BCRA § 202, and in which THOMAS, J., joined with respect to BCRA §213. REHNQUIST, C. J., filed an opinion dissenting with respect to BCRA Titles I and V, in which SCALIA and KENNEDY, JJ., joined. STEVENS, J., filed an opinion dissenting with respect to BCRA § 305, in which GINSBURG and BREYER, JJ., joined.
Who won? I have no idea.
For embodying in a single voting lineup the reason why the most accurate answer to most legal questions is “It depends,” this case gets into the Strange Judicial Opinions Hall of Fame. If members of the world’s most powerful tribunal are unable to agree on what the law means, how could one expect poor law students to do so?
— McConnell v. Federal Election Comm’n, 540 U.S. 93 (2003). Thanks to Elise Hendricks.
A Facebook friend posted this picture of a candy wrapper, featuring the warning:
MAY CONTAIN TRACES OF PEANUTS AND HUMAN FLESH
Not sure where he got it or if it’s real. It doesn’t look Photoshopped (but it’s hard to tell sometimes).
Human tissue does sometimes end up in food products during the manufacturing process, probably more often than we would want to know.
My favorite “flesh in food” cases is a 94-year-old Mississippi Supreme Court case where the plaintiff found a human toe in a plug of chewing tobacco. That’s one way to “kick” the habit. Har, har.
The plaintiff couldn’t prove how the toe got there, so he invoked res ipsa loquitur. For non-legals, res ipsa loquitur is a procedural device that allows a tort plaintiff to get his case to a jury despite a lack of specific evidence that the defendant was negligent if: (1) the injury-causing event is of a nature that ordinarily would not happen unless someone was negligent; and (2) the defendant had control of the instrumentality at the time the negligence most likely occurred.
I have always loved the Mississippi court’s terse analysis of the first element: “We can imagine no reason why, with ordinary care, human toes could not be left out of chewing tobacco, and if toes are found in chewing tobacco, it seems to us that somebody has been very careless.” Pillars v. R.J. Reynolds, 78 So. 365 (1918).
But is human flesh getting into food really such an extensive problem that manufactuters feel obligated to warn about it? This is either a fishy warning or our food supply and worker safety programs are in worse shape than believed. Or, a third possibility is that California passed a law.
Former Michigan Supreme Court Justice Eugene F. Black
Thanks to Graham Bateman for turning Lawhaha.com on to a real character: Justice Eugene F. Black, a judge whose inflammatory dissent-writing makes caustic U.S. Supreme Court Justice Antonin Scalia’s dissents read like love letters in comparison.
Black regularly lashed out at his colleagues on the Michigan Supreme Court, on which he served from 1956-72, holding their feet to the fire when he saw their actions as reckless, destructive, deceptive, partisan, or willful.
For being so outrageous in his outrage, and for having such a sharp, articulate poison pen, Justice Black lands in the Strange Judicial Opinions Hall of Fame.
Black was a judge who took to heart the words of Benjamin Cardozo’s famous ode to dissent-writing, which Black quoted in Guilmet v. Campbell, 188 N.W.2d 601, 611 (Mich. 1971):
Comparatively speaking at least, the dissenter is irresponsible. The spokesman of the court is cautious, timid, fearful of the vivid word, the heightened phrase … Not so, however, the dissenter. He has laid aside the role of the hierophant, which he will be only too glad to resume when the chances of war make him the spokesman of the majority. For the moment, he is the gladiator making a last stand among the lions. (From Selected Writings of Benjamin Nathan Cardozo 353 (Fallon Publications 1947))
Justice Black may have been a gladiator, but I suspect his colleagues had a few other names for him. He wasn’t satisfied to simply disagree in his dissents. He liked to rip his colleagues to shreds in the process. Guilmet provides a good example. The majority held in favor of the plaintiff in a breach of contract action against a surgeon. Black’s dissent began like this:
In these early weeks of 1971 an exuberant new majority of a once great appellate court prepares to launch an unwarned, unprecedented, wholly gratuitous and destructively witless war of “contract liability” upon a brother profession ….
He was just getting warmed up. A little later, he said:
As against this there is no pretense of proffered authority or precedent. My Brothers five just say “This is the law.” That they do with an arrantly dixitized vengeance, for all of the skilled research clerks of Lansing, working with no surcease and without food or drink, never could come up with any kind of respectable or even plausible authority [for the court’s holding].
And then later:
Thus far there appears to the writer still another like bushment the Court should see but does not see, or perhaps is too absorbed to see, dead ahead.
Other examples of Justice Black’s unique style of brethrenly love include:
In re Apportionment of State Legislature, 197 N.W.2d 249, 262 (Mich. 1972) (Black, J., dissenting) (“[T]oo much of that heady stuff known as partisan politics has been steamed into the present proceeding and … this partisan-nominated Court should disqualify itself ….”)
Plumley v. Klein, 199 N.W.2d 169, 173 (Mich. 1972) (Black, J., dissenting) (“The Court has chosen the sleaziest of pleaded causes as opportune for the nullification of [a prior case.] … I cannot hold still before this latest judicial monster.”)
Jones v. Bloom, 200 N.W.2d 196, 207–08 (Mich. 1971) (“[O]ur majority must have labored, conferred, caucused and searched … to find some or any colorable way to overrule [jury’s verdict] … Our reports … are on the shelves of thousands of lawyers and judges. They bear now undeniable witness of both a profaning and deplorable fact; that this temporally seated and largely fledgling Court is bent purposefully upon progressive destruction of all or near all of the great canons and precedential precept which the nationally revered Cooley Court, and the succeeding Fellows Court, have bequeathed to Michigan.”)
Don’t know the merits of any of these cases, but in a day of cautious and tepid judges, you gotta love a judge who was willing to tell it like is (at least as he saw it).
— Citations included in text above. Thanks to Graham Bateman.
Triple Crown threat Funny Cide caught up in weird judicial opinion.
The total weirdness of Florida Court of Appeals Judge Farmer’s opinion in Funny Cide Ventures, LLC v. Miami Herald Publ’g Co. gets the case into Lawhaha.com’s Strange Judicial Opinions Hall of Fame.
Here’s a first in judicial writing: an appellate judge writes an opinion in an offbeat fiction-style based on a tune from Guys and Dolls, can’t get the other judges to go along with his approach, so decides to attach his creative opinion to the court’s per curiam opinion together with a lengthy preface explaining his unique approach to written adjudication.
Confused? Let’s back up. In 2003, Funny Cide won both the Kentucky Derby and the Preakness, one race away from the Triple Crown.
After the Kentucky Derby, the Miami Herald published an article implying that the jockey cheated by using some kind of illegal battery-powered device during the race. The Herald later admitted it made an error and retracted the story. Meanwhile, Funny Cide placed third at the Belmont, missing out on becoming only the twelfth horse in history to win the Triple Crown.
In a lawsuit for injurious falsehood against the Herald, Funny Cide’s owners claimed the article caused substantial damage, including the chance to win the Belmont because “the article caused the jockey to over-ride the horse in the Preakness in an attempt to vindicate himself.”
The defendant moved for summary judgment, which was granted on the ground that the plaintiffs had not alleged direct and immediate damages from the article. The appellate court affirmed in a brief per curiam opinion.
So far, so good.
Then the reader stumbles on Judge Farmer’s … not sure what to call it … tacked on at the end of the court’s opinion. It’s not a concurring or dissenting opinion, and is not labeled as an appendix.
His “attachment” to the majority opinion is not a dissent from the reasoning of his brethren’s opinion, but the boring way in which they expressed it.
Judge Farmer starts by assailing traditional stilted judicial opinion writing, then explains why a humanized, pot-boiler narrative approach might be better. He concludes by suggesting readers compare the two approaches–his and the majority’s–and decide which is better.
Basically, he seemed to be saying: “Hey, I labored over writing this really fun and wild opinion, but these dudes I work with on the court are too straitlaced to get it, so here it is for your reading pleasure.”
Here are excerpts, first, from his attack on traditional judicial opinion writing:
Most [judicial opinions are] … dreary and tedious. …
A surprising number are way too long. There is often a painstaking account of background and trial which turns out to be unnecessary to grasp the essential issues to be decided. Many have extended discussions of rules and principles no one really challenges, or few would dispute. Judges pile on needless details of date, time and place, modified by confusing identifying terms (appellant-cross appellee-defendant) without regard to clarity. Extended comparative quotations alternate with exposition of one sort or another. Legal issues are analyzed through mind-numbing, many-factored “tests”. Each factor is unloaded nit by nit, as though the judges actually decided the dispute in precisely that way. Arcane legal terminology is woven in and out, even though simpler, plainer words could be used. Simplicity, tone, style, voice, personality, levity-all are shunned.
Judge Farmer concedes he’s been guilty of what he describes, then sets out to change his opinion-writing ways:
From the very moment of my appointment as a judge, I have chafed under this norm for appellate opinion writing. How did it become conventional? Who made it required? Why hasn’t it been changed?
I struggled against it. There must be other styles, different tones, alternate voices. Not for every opinion. But for some.
One technique occurred to me. This idea would have an opinion in some of the forms, styles and characteristics associated with fiction. Good fiction is set in human experience. Good fiction illuminates.
***
I had decided that the style of some opinions could-and should-be unconventionally changed for greater openness to all readers. I would try to write some opinions in styles and tones calculated to make legal reasoning clearer for those without law degrees. Then came this case.
When the panel conferred after oral argument, I did not detect any disagreement. … So after thinking on the matter, I conceived of an unconventional approach. I would try a style, a tone, a voice to make apparent even to non-lawyers what I believed is the basic defect in their argument. The very style of the opinion itself would illuminate the legal analysis and outcome.
As it turns out, the other two members of the panel could not endorse the opinion or even some slightly altered version. They had concerns. Some other judges shared them. So I give this explanation for what I wrote, laying my version along side the panel’s substitute. Readers can compare a conventional opinion with an unconventional style-the pious with the impious.
Then comes the opinion. Here’s an excerpt, inspired by the opening song of Guys and Dolls, Fugue for the Tinhorns:
Then the horse won the Preakness Stakes. And it’s not even close. Wins by nearly ten lengths. The horse is so far out front, looks like he could make it past the wire and into the barn before they can take the photo. Hardly anyone asked if the horse ran out of gas for the Belmont. Are you kidding? Racing was all stirred up about the Crown. The feedbox noise grew hot.
Was it a dream, or did I hear stories about a guy who read in the paper the horse wins it all by a half? About another guy who said it was no bum steer, it was from a handicapper that’s real sincere? Even about a third guy who knew this is the horse’s time because his father’s jockey’s brother’s a friend?
Whatever. It’s a lock. Two jewels for the Crown. Make room for the third.
Only, wait a minute. Did I hear another story about this one guy who wasn’t so sure? Said it all depends if it rained last night?
For the life of me, I can’t understand why the other judges on the panel were hesitant to join in this opinion.
— Funny Cide Ventures, LLC v. Miami Herald Publ’g Co., 955 So.2d 1241, 1243–47 (Fla. Dist. Ct. App. 2007). Thanks to Kevin McDowell and James Heelan.
But maybe someone broke their leg despite that aggressive risk-reducing measure, because now the city has a new fix: an orange cone! Cement apparently is still not being considered.
But, oops, we also have a new problem a couple yards farther down: a curb stone in the middle of the sidewalk.
In U.S. v. Byrnes, the defendant was convicted of making false statements to a grand jury investigating illegal trafficking in exotic birds. The issue involved the materiality of statements as to whether some illegally imported swans and geese were dead or live when the defendant received them.
To bolster its case, the government called a collector of Australian parrots who testified the defendant had delivered some swans and geese to her. Defense counsel cross-examined the witness, an immigrant from Germany who had difficulty speaking English, in an apparent effort to challenge her credibility as a bird expert. Here’s the interesting colloquy:
Q. Mrs. Meffert, do you recall testifying yesterday about your definition of birds?
A. Yes.
Q. And do you recall that you said that the swans and geese were not birds?
A. Not to me.
Q. What do you mean by that, “not to me?”
A. By me, the swans are waterfowls.
Shortly thereafter, Mrs. Meffert was cross examined as follows:
Q. Are sparrows birds?
A. I think so, sure.
Q. Is a crow a bird?
A. I think so.
Q. Is a parrot a bird?
A. Not to me.
Q. How about a seagull, is that a bird?
A. To me it is a seagull, I don’t know what it is to other people.
Q. Is it a bird to you as well or not?
A. To me it is a seagull. I don’t know any other definition for it.
Q. Is an eagle a bird?
A. I guess so.
Q. Is a swallow a bird?
A. I don’t know what a swallow is, sir.
Q. Is a duck a bird?
A. Not to me, it is a duck.
Q. But not a bird.
A. No, to other people maybe.
The government stipulated that swans and geese are birds.
Because it makes me laugh every time I read it, this opinion gains entry to the Strange Judicial Opinions Hall of Fame.
— United States v. Byrnes, 644 F.2d 107, 110 n.7 (2nd Cir. 1981). Thanks to Walter Fitzpatrick.
The goal in crafting a pictorial product warning is to come up with a picture that can be universally understood, even by people who speak different languages or are illiterate. But it’s darned difficult to capture most warnings in the form of a simple drawing.
Case in point: this warning on a 3M paint-fumes mask. You’ve seen or used these before. They are paper masks held to one’s face with rubber bands that go behind the head.
But what is this pictorial warning trying to say? The accompanying text helps, but, again, the whole idea of pictorial warnings is that they are supposed to be understandable even by people who can’t read the written warning.
So just concentrate on the picture itself and ask, “What is it saying?
Here are possibilities that come to mind:
— “Smoking Area”
— “Help, My Lungs Recently Exploded”
— “Totally Awesome Bong”
— “Short Pants Are Caused By Clouds”
And what’s up with the limitation in the written warning that the respirator helps keep “non-harmful dusts and certain particles out of your nose, mouth and lungs”? Isn’t the whole point of buying them to keep out harmful dust and particles?
U.S. Seventh Circuit Court of Appeals Judge Terence T. Evans, who passed away in 2011, was well-known for his opinions jammed with sports trivia (see here and here).
But in a criminal case involving witness tampering and “too many Murphys” (the defendant, his son and the trial judge were all named Murphy), Judge Evans mined a different pop culture-vein in an opening footnote necessitated by a court reporting error in the trial transcript:
1. The trial transcript quotes Ms. Hayden as saying Murphy called her a snitch bitch “hoe.” A “hoe,” of course, is a tool used for weeding and gardening. We think the court reporter, unfamiliar with rap music (perhaps thankfully so), misunderstood Hayden’s response. We have taken the liberty of changing “hoe” to “ho,” a staple of rap music vernacular as, for example, when Ludacris raps “You doin’ ho activities with ho tendencies.”
Give credit to Ludacris. Cited as authority by the distinguished U.S. Court of Appeals for the Seventh Circuit. Maybe his next release will be a hornbook.
— United States v. Murphy, 406 F.3d 857, 859 n.1 (7th Cir. 2005). Thanks to the several folks who sent this opinion.
Thanks to Professor Laura Heymann, College of William & Mary-Marshall-Wythe School of Law, for sending along her funny parody of intellectual property law in the form of a cease and desist letter sent from one neighbor to another complaining about infringement of the offended neighbor’s parenting directive to “Eat your frisee salad.”
