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The Future of Quoting Lyrics in Judicial Opinions:
Over at Convictions, Adam White notes that Chief Justice Roberts' recent citation to Bob Dylan has been one-upped by the following introduction from a new D.C. Circuit opinion by Judge Janice Rogers Brown:
BROWN, Circuit Judge:
  Forty years ago Jimi Hendrix trilled his plaintive query: "Is this love, baby, or is it … [just] confusion?" JIMI HENDRIX, Love or Confusion, on ARE YOU EXPERIENCED (Reprise Records 1967). In this False Claims Act case, we face a similar question involving a mortgage subsidy program initiated in that era: Is this fraud, or is it … just confusion? K & R Limited Partnership says it is the former, alleging that during the last 15 years, MassHousing has knowingly submitted excessive claims for subsidy payments to the federal government. The district court granted summary judgment for MassHousing, United States ex rel. K & R Ltd. P'ship v. Mass. Hous. Fin. Agency, 456 F. Supp. 2d 46 (D.D.C. 2006), and we affirm because there is no genuine issue as to whether MassHousing knew its claims were false.
  If the trend of quoting lyrics popular when the judge was a young adult keeps up, we can imagine a lot of passages from judicial opinions of the future.

  For example, here's a possible opening passage from an OSHA opinion from the DC Circuit in 2025:
ADLER, Circuit Judge:
  The Department of Labor's Occupational Safety and Health Administration (OSHA) promulgated new rules for General Working Conditions in Lunar Employment. The petitioners claim that the new rules do not satisfy the statutory requirements of workplace safety -- in the words of Men Without Hats, that they do not dance "the Safety Dance." MEN WITHOUT HATS, Safety Dance, on RHYTHM OF YOUTH (Statik Records 1982) ("And we can act like we come from out of this world, Leave the real one far behind, And we can dance"). Finding no error, we affirm.
  And here's a possible opening for a Ninth Circuit sentencing appeal from 2035:
ROWLEY, Circuit Judge.
  The defendant in this case was convicted of felony distribution of narcotics. At sentencing, the defendant claimed that his aspirations for lawful employment render criminal punishment inappropriate in his case. The defendant's aspirations resemble Snoop Dogg's dream "to own a fly casino, like Bugsy Siegel, and do it all legal, and get scooped up by the little homie in the Regal." TUPAC SHAKUR FEAT. SNOOP DOGGY DOGG, 2 Of Amerikaz Most Wanted, ALL EYEZ ON ME (Death Row Records 1996). Because we are bound by the Supreme Court's recent Eighth Amendment jurisprudence, we are required to vacate the conviction.
  Any guesses on what judicial opinions from 2050 might look like?
FantasiaWHT:
No, but the year 2525 will be epic (if man is still alive)
7.8.2008 4:33pm
OrinKerr:
FantasiaWHT, that one deserved a YouTube link.
7.8.2008 4:35pm
John425:
"Any guesses on what judicial opinions from 2050 might look like?"

Defendant is remanded to the Denver Gulag for 25 years. by Order of The Commanding Commissar-9th People's District. All rise and bless St Obama.
7.8.2008 4:40pm
ohyeahits19999:
Defendant, who has been imprisoned in Fulsom County for 50 years, has filed his 42nd habeas corpus appeal in the wake of the Supreme Court's recent decision finding a constitutional right to an infinite number of habeas appeals, Smith v. Quarterman, 8045 U.S. 45 (2050). Defendant seeks to re-raise the issue of the adequacy of his counsel, arguing here, as he consistently argued in each of his first 41 appeals, that at the time of the murder he was "Partying like it was 1999," PRINCE, 1999 (Warner Bros. Records 1982), because it was in fact 1999. . . .
7.8.2008 4:40pm
Caliban Darklock (www):
I'm just waiting for someone to quote Marilyn Manson.
7.8.2008 4:43pm
Kovarsky (mail):
i think the quoting of lyrics in judicial opinions is kind of lame actually. it's bad enough to have to deal with faux bohemian bullshit on the lower east side - you know, the tattered velvet underground and iggy pop t shirts, etc - without having to deal with it at your job, too. especially when you are a fed courts practitioner. it strikes me as the judicial equivalent of mitt romney's "who let the dogs out" incident. i'm not saying the judges don't like hendrix, etc. - but it's such an adolescent way of courting an audience that there's something off putting about it.

i say all of this as the dipshit who name-dropped frank zappa in his first law review note.
7.8.2008 4:45pm
Jonathan H. Adler (mail) (www):
Orin --

However questionable my taste in music, I doubt I would ever quote Men Without Hats -- unless, of course, the relevant OSHA standard required the wearing of hats.

JHA
7.8.2008 4:51pm
DCTenor1:
"Because we are bound by the Supreme Court's recent Eighth Amendment jurisprudence, we are required to vacate the conviction."

LOL. Now that got a hell of a laugh. Thanks for that one.
7.8.2008 5:00pm
Originalism Is Useful (mail):
CLINTON, Circuit Judge.
The defendant in this case was convicted of felony sexual harassment of whales for the crime of, as set forth in the superseding indictment, "morning wood at the beach". At sentencing, the defendant claimed that the rule of lenity warranted a narrow construction of our jurisprudence concerning the Fifth Amendment rights of whales to be free of oceanic abuse. Unfortunately for the defendant, much like wood, our Constitution is organic. The defendant's pleas for mercy resemble the Grateful Dead's now-discredited paean to whale abuse: "Lovin’ and drinkin’ in the afternoon, swabbin’ the deck and sharpnin’ harpoons. Hooray, up she rises. Hooray, up she rises. Hooray, up she rises. So early in the morning." THE GRATEFUL DEAD, UNKNOWN DISCOGRAPHY. Because we are bound by the Supreme Court's "California Whale Cases," including the super-duper precedent of Winter v. Natural Resources Defense Council, we are required to affirm the conviction.

Furthermore, defendant/appellant's motion for recusal is denied. Appellant John "Long Harpoon" Siliver submitted a motion requesting my recusal under the federal recusal statute if, in my prior work for a hedge fund, I “personally participated on issues relating to hedge fund management that would prejudice me against a sexy multimillionaire like [himself] ... especially with all [my] junk in [my] trunk.” Mot. at 2; see 28 U.S.C. § 455. I denied the motion because recusal is not supported by or appropriate under either the specific provisions of § 455(b) or the general provision of § 455(a), and because defendant/appellant is not "ready for this jelly."
7.8.2008 5:01pm
The Cabbage (mail):
PORTMAN, Circuit Judge

Accordingly, we reject the District Court's reading. Judge Lat's opinion make far too many references to the lyrics of bands that have sold out. In fact, the law is much more like the words of a band you cannot possibly have heard of, because you are not as cultured as this Court.
7.8.2008 5:18pm
Originalism Is Useful (mail):
Here is a link to the superseding indictment.
7.8.2008 5:19pm
SND:
I imagine a case rejecting a complaint as Res Judicata quoting Nirvana's "Heart Shaped Box" ["Hey Wait! I've got a new complaint..."].
7.8.2008 5:25pm
NYU JD:
As someone who quoted song lyrics extensively in a law school paper (to be fair, it was on the intersection of right of publicity and copyright preemption in the area of sound-alikes looking at the Guitar Hero case up in Michigan), I strongly approve.

SMITH, Circuit Judge

Defendants argue that their mixing of recordings and musical works owned by the Plaintiff are protected by the First Amendment. Under the Digital Copyright Act of 2018, though, the court must follow Geddy Lee's cynical observation, "One likes to believe in the freedom of music; but glittering prizes and endless compromises shatter the illusion of integrity." RUSH, Spirit of Radio, on Permanent Waves (Mercury Records, 1980). Whatever Congress's motives were for the 2018 Act, its limitation of fair use was not unconstitutional, and we accordingly affirm the verdict in favor of Plaintiff.
7.8.2008 5:35pm
Thales (mail) (www):
I'd rather speculate on what musical footnotes the great adjudicative computers filling the hallowed halls of the priests of the Temples of Syrinx will find pleasing in the year 2112.
7.8.2008 5:38pm
Crackmonkeyjr (www):
I personally have a great dislike for when judges make this sort of reference (be it to music, literature or anything else) in their decisions. They almost never provide any value to the decision and almost always come of as cliches that could apply to almost any decision.
7.8.2008 5:42pm
FantasiaWHT:
Those single references don't bother me as much as, say, that one opinion out of New York on the emergency standard of care doctrine (something about a cab being carjacked and then crashed when the driver lost control), which was written in a really half-assed faux-Shakespearian prose style.

Grr, I can't find it now. Have to dig out my torts casebook again.
7.8.2008 5:52pm
R:
Caliban Darklock,

How about, "Defendant claims he doesn't like the drugs but the drugs like him"?
7.8.2008 6:27pm
R:
Caliban Darklock,

How about, "Defendant claims he doesn't like the drugs but the drugs like him"?
7.8.2008 6:27pm
R:
Sorry about the double post. I'll refrain from the Foreigner reference that goes with it.
7.8.2008 6:29pm
Just Dropping By (mail):
What, no mention of Chancellor William B. Chandler III of the Delaware Court of Chancery? He's cited song lyrics in his decisions several times.

See, e.g., cite to 50 Cent, Poor Lil Rich, on Get Rich or Die Tryin’ (Shady Records/Aftermath Records/Interscope Records, 2003).
7.8.2008 6:33pm
Originalism Is Useful (mail):
Oh, I forgot the Grateful Dead song title. It was "Save the Whales".
7.8.2008 7:13pm
BruceM (mail) (www):
I've always wanted to quote Neil Young's "Ambulance Blues" in a legal brief - I've just never yet had the occasion.

An ambulance can only
go so fast
It's easy to get buried
in the past
When you try to make
a good thing last.


Neil Young rules.
7.8.2008 7:30pm
Alan Jeffries (mail):
IN THE COURT OF APPEALS OF NEW YORK

SPITZER, C.J.

We consider, here, the constitutionality of New York City's anti-prostitution laws in light of the enactment of the 33rd Amendment to the U.S. Constitution which states, in pertinent part, "...[n]o one shall be abridged the right to do with their own body as they please..." Reminds me of my more scurrilous days; "cops in cars, the topless bars, never saw a woman...so alone...so alone!" L.A. Woman on L.A. Woman (Elektra 1971). In any event, the appellate division struck down the laws. We affirm sans explanation.
7.8.2008 8:37pm
wooga:
circa 2050:
DOGG, Circuit Judge.

Defendant was convicted of multiple felonies, including kidnapping, battery, and forcible sodomy. On the evening in question, after illegally consuming alcohol at an underground bar, defendant accosted the victim, a Federal Dietary Compliance Agent, and forced her into his 2024 Ford/Lamborghini Fiesta XLT. He drove her to his residence, where he disabled the victim with a roundhouse kick to the head. He continued to punch the victim during the 12 hour assault. The defendant's demeanor could best be summed up by the immortal words of recent Rock and Roll Hall of Fame inductee Akon: "Why don't you jump in my Lamborghini Gallardo, Maybe go to my place and just kick it like TaeBo... Smack that all on the floor, Smack that give me some more, Smack that 'till you get sore, Smack that oh-oh!" AKON, "Smack That (feat. Eminem)," on KONVICTED (Konvict Muzik/UpFront/SRC/Universal Motown 2006). Because 500 hours of community service is a grossly excessive and unusual punishment for this crime, the conviction cannot stand.
7.8.2008 9:04pm
SIG357:
JRB seems to have that musical vibe going. Here's a lecture she gave at the Federalist Society, A Whiter Shade of Pale.
7.8.2008 9:07pm
Sammy (mail):
Li, Circuit Judge:

The plaintiff alleges that his doctor recklessly caused him emotional distress by misdiagnosing the plaintiff. The "malignant tumor" that was "100% likely to kill [the plaintiff] in six months or less" turned out to be either malignant nor a tumor. Although the Court understands the toll this ordeal likely has taken upon the plaintiff, it urges the plaintiff to remember that many of us "hope [to] get the chance to live like you were dying," so that we can "love[] deeper and [speak] sweeter and [] g[i]ve forgiveness [we]'d been denying." See Tim McGraw, Live Like You Were Dying, on LIVE LIKE YOU WERE DYING (Curb Records, 2004). Because the doctor's actions, although likely negligent, do not rise to the level of recklessness, we affirm the district court's grant of summary judgment to the plaintiff.
7.8.2008 9:34pm
Steve2:
NYU JD, I think the dissent would jump on that. Smith clearly misapplied Peart's reasoning.

I think we should all be grateful that more judges don't quote song lyrics for no other reason than that with (as Wikipedia currently states) over 700 attorneys currently practicing there, we'd all rapidly get very, very sick of seeing, for example, "IT IS HEREBY ORDERED that the proposed findings and recommended disposition of
the United States Magistrate Judge are adopted by the Court. Everyone's a winner at Nixon-Peabody," or "AFFIRMED. Everyone's a winner at Nixon-Peabody."
7.8.2008 9:46pm
A.W. (mail):
I always thought this sort of thing was silly and self-indulgent on the part of lawyers and judges. There is room for clever tie ins, but with an emphasis on the clever part. Most of these are witless.
7.8.2008 11:04pm
NR:
OIU,

There is no Grateful Dead song called "Save the Whales.". Please.
7.9.2008 12:32am
advisory opinion:
One-upped in the contrived stakes maybe. JRB's cite is pretty full-on lame. If slipped into an unobstrusive part of the opinion, OK; but this crosses the line of good sense, style, and propriety for me.
7.9.2008 3:04am
Mary Katherine Day-Petrano (mail):
.
7.9.2008 5:06am
Mary Katherine Day-Petrano (mail):
Some of the posters on this blog who threatened to CIPAV my Dragon NaturallySpeaking disability speech recognition computer, which was then almost immediately destroyed by a Trojan horse, have been threatening me on other blogs that I was banned here. I am not getting any posting message stating I have been banned, nor have I or my husband received any e-mails from Eugene notifying me I have been banned. Have I been banned w/o any notice? If so, why is this blog accepting my posts?

If I am banned after being threatened by posters here that my disability computer was going to get CIPAV'd and it was then almost immediately destroyed, then why has no one notified me I am banned? Am I banned? Or not banned? If I am banned please give me some notice this is so. And please inform me why, as well as why I would be banned when I am the victim of the disability computer-destroying threat/attack.

The Trojan horse-style attack completely trashed my speech recognition computer I needed for meeting deadline for a Supreme Court Petition in my Vessel Mistress case.
7.9.2008 5:17am
runape (mail):
These things have their place -

“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.”
7.9.2008 10:18am
Ted S. (mail) (www):
Tax cases would have to cite ABBA's "Money Money Money".

Also, the case of Marmalade v. City of New Orleans would be ripe for quoting lyrics....
7.9.2008 10:28am
Sammy (mail):
Gomez, Circuit Judge:

In the early morning hours of September 2, 2047, the defendant, who at the time was passing a small plastic bag to another man, was spotted by a patrol car. When the officers yelled "police," the defendant began to run. The officers caught up with the man three blocks later, arrested him, and found a considerable quantity of drugs on his person. The defendant was convicted of a number of offenses arising from this incident, but on this appeal he principally is challenging his conviction on only one of those counts: he claims that he did not
"knowingly and intentionally forcibly resist, oppose, impede, and interfere with" a federal officer in
violation of 18 U.S.C. § 111(a)(1). Specifically, the defendant claims that he did not hear the officer who shouted "police" -- he has offered into evidence some information that might be taken to indicate
that his hearing is not perfect -- and that it was mere coincedence that he began running mere moments after the police began their pursuit. Although this Court remembers a time when people ran for no reason -- "jogging" was a fad once upon a time -- we find it highly
unlikely that the 20 year old defendant was seeking to resurrect that long-forgotten pastime at three in the morning on that fateful day. Because "something has to make you run," and because this court knows
quite well why the defendant "didn't come" when the officers arrived on the scene, we affirm. See Norah Jones, Don't Know Why, on COME AWAY WITH ME (Blue Note Records 2002).
7.9.2008 4:45pm
OrinKerr:
Mary,

It is my understanding that you have not been banned.

Best,
Orin
7.10.2008 12:08am