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Litigation Tip:

Let's say you represent a condo board. The board has forcibly removed at least two mezuzot from the homes of Jewish families in the building. The families sue, claiming intentional discrimination in violation of the Fair Housing Act. The condo board claims it is just enforcing a neutral rule. In your reply brief, you are looking for a literary allusion to describe what you believe is the illegitimate request the plaintiffs have made for money damages. Perhaps it would be wise not to suggest that the plaintiffs are [like Shylock] trying to extract a "pound of flesh" from the defendants.

(See Judge Diane Wood's dissent in this very interesting case.)

UPDATE: I see from the comments that David Lat beat me to it, with a rather similar, albeit shorter, post on Friday. David apparently heard about this case through an item on the WSJ law blog, but I saw it at Haaretz.com (which I can't link to because the site seems to be down).

Bill Poser (mail) (www):
It is indeed amazing that defendants would choose such an inappropriate quotation.

I am a bit surprised that the defendants considered the placement of a mezuzah to violate clause (1) of the Hallway Rules rather rather than clause (2). Clause (1) would seem to apply to objects actually in the hallway, i.e. resting on the floor or otherwise obtruding into the hallway.

I am also somewhat surprised that there is no mention of compensation for the value of the mezuzot, which were confiscated by the condominium association. Even a cheap mezuzah would be worth more than $50 due to the skilled labour of the scribe who writes the klaf. Many are worth considerably more and/or are heirlooms.
7.13.2008 6:02pm
John (mail):
There are two explanations, first, that the defendants' lawyers understood the origin of their reference and were insensitive, and second that they had no idea what the origin was.

My bet is the second.
7.13.2008 6:10pm
wm13:
This seems like the flip side of a post by Prof. Volokh from a day or two ago. I guess everyone here agrees that if a black person objects to the phrase "black hole," he is laughably oversensitive, but that if a Jewish person objects to the phrase "pound of flesh," he is fighting the good fight against the ever-present danger of anti-Semitism.

Anyway, the defendants won, so Prof. Bernstein's rhetorical trope of presenting his complaint as a "litigation tip" falls sort of flat.
7.13.2008 6:29pm
Jamey (mail):
Yes, "pound of flesh" is a terribly infelicitous way of saying that the plaintiffs are trying to pickpocket the other tenants like some disciples of Fagin....

There, corrected.
7.13.2008 6:36pm
Richard Riley (mail):
Well, wm13, "pound of flesh" has very specifically Jewish associations via Shakespeare, whereas "black hole" has literally no racial aspect at all. So I'd say the cases are different.

Prof. Bernstein, I'm sure you weren't aware of it, but David Lat at abovethelaw.com made exactly the same joke ("litigation tip"/"practice pointer") on Friday:

"Much ado about a mezuzah, and a practice pointer: if you're being sued by Jewish residents for alleged violations of the Fair Housing Act based on religion, don't use the phrase 'pound of flesh' in your brief."

http://abovethelaw.com/2008/07/non-sequiturs_071108.php
7.13.2008 6:38pm
BossDog:
wm13, except pound of flesh comes from a story that puts Jews in quite a bad light, while black hole has absolutely nothing to do with any racial group.

And David, if you picked this up from ATL, you really should give a shoutout. Lat does it for stuff he gets from here.
7.13.2008 6:39pm
BossDog:
Richard, that you and I wrote pretty much the same thing is freaky.
7.13.2008 6:40pm
Richard Riley (mail):
Agreed, BossDog. Major doubletake here. Great minds, etc.
7.13.2008 6:43pm
ReaderY:
The complaint alleges the defendants engaged in behavior, from their bizarre interpretation of the "hallway clutter" rule as applying to a mezuzzah in the first place, to secrecretly removing it when the family had left for Mrs. Bloch's father's funeral so that all the funeral guests saw it gone on their return, which a reasonable ury could characterize as intended more for purposes of harasasment rather than any good-faith enforcement of a rule.

Characterizing a mezzuzah as clutter is no more neutral than characterizing a sacrifice as a barbarous practice.
7.13.2008 7:05pm
Jim Rhoads (mail):
IMO, the plaintiffs' counsel should have strongly considered bringing their claims in state court for trespass, conversion, theft, breach of fiduciary duty and intentional infliction of emotional distress for the unauthorized removal of the religious symbols. This was not a fair housing case, and the Association's liability insurance likely would not cover it even if it were.

OTOH, the state claims likely would have been covered, and the ins. co would have settled the case for a nominal amount.

I agree with the observation that, on balance, the association's counsel out-lawyered the plaintiffs' counsel. Accordingly, the "practice tips" are almost as gratuitous as the stupid commment in the association's brief.
7.13.2008 7:44pm
davidbernstein (mail):
I had no idea that Lat had a similar post. I noticed this via a post at Haaretz.com, not abovethelaw.
7.13.2008 8:30pm
Sasha Volokh (mail) (www):
wm13: Plus, let's say I had a civil rights case where I was up against, say, the NAACP. It would be a bad idea to use the word "niggardly," and I would advise any lawyer to avoid the term -- even though I don't think it's reasonable to take offense at it. Whether something is reasonable, or whether one has the right to do it, may not have anything to do with whether it would be a smart litigation tactic.

Similarly, we all have the right to walk on the streets in any neighborhood late at night, but people who do that in certain areas of town may still be stupid.
7.13.2008 8:35pm
wm13:
Okay, Sasha Volokh, but maybe you also shouldn't refer to "black holes" when talking to a black city commissioner. Not being black or Jewish, I don't have much a dog in this fight, but it seems to me that to complain about a literary allusion that you have to spend a paragraph explaining (as Judge Wood did), while jeering at a black person who complains about derogatory use of the term "black hole," is hypocritical and inconsistent.

For myself, I avoid hypersensitive people like Commissioner Price and Prof. Bernstein, precisely so that I may speak as I please and not be cut off from the Western literary canon.
7.13.2008 9:06pm
davidbernstein (mail):
Judge Wood expressed the sensitivity, not me. But be that as it may, the "black hole analogy" is inapt. A much better analogy would be a lawyer representing defendants against African American plaintiffs in a 14th Amendment discrimination lawsuit who worked a "Birth of a Nation" reference into their reply brief in the process of disparaging the plaintiffs.
7.13.2008 9:24pm
byomtov (mail):
to complain about a literary allusion that you have to spend a paragraph explaining

Anyone who requires an explanation of this allusion is an ignoramus. I know I'm describing lots of people, but come on, folks, it's not that obscure.
7.13.2008 9:28pm
wm13:
byomtov, I hasten to assure you, I got the allusion. I would have gotten it before I went to law school, or even college. But my guess would be that Judge Wood discovered that half her clerks and colleagues didn't get the allusion, or how it could be offensive, so she had to explain it, which in turn undercuts Prof. Bernstein's and her point.
7.13.2008 9:37pm
Sasha Volokh (mail) (www):
wm13: Indeed, if it turns out that black people are offended by "black holes," I wouldn't use the term when making an argument to black people. (As I mentioned before, same with "niggardly.") But at the same time, I'd deride anyone who was actually offended. I don't see how the one excludes the other!

I don't see where there's any hypocrisy going on, by the way: Judge Wood takes time to berate the lawyers for being insensitive for the Shylock reference, but she never took any position on black holes! Similarly, the reference to black holes is from Eugene, who hasn't taken any position on Shylock! And David Bernstein hasn't taken much of a position on the merits of using "black hole" (only in the comment a bit above this one, where he says the analogy is inapt), nor has he said that the Shylock reference is offensive!

I myself would berate anyone for finding "black hole" offensive, and I also don't find the Shylock reference offensive, though I agree that it's dumb litigation strategy to use it, because others might find it offensive. Where's the hypocrisy?

But let's even suppose that someone does deride those who take offense at black holes, while at the same time personally taking offense at the Shylock reference (rather than just thinking it's dumb litigation strategy for the reasons given above). Would that be hypocritical? Tampoco, for the reasons given by several commenters above: Shylock has specific anti-Jewish associations, while the expression "black hole" has no racist associations. So it's more reasonable to be offended by Shylock than by black holes. Perhaps, in the end, one shouldn't be offended by either; but the two cases are clearly distinguishable.
7.13.2008 10:19pm
Uthaw:
whereas "black hole" has literally no racial aspect at all.

The offended blacks in that case clearly thought that it did!
7.13.2008 10:48pm
wm13:
But, Sasha Volokh, the defendants' brief didn't refer to the plaintiff as a "shylock" or even mention Shylock. It referenced the most famous instance in Western literature of an overreaching claim for damages. As I'll bet Judge Wood discovered, three-quarters of the people who encounter the allusion can't remember the plaintiff's name, much less his religion. It is Prof. Bernstein and you who insist on mentioning Shylock.
7.13.2008 11:03pm
SPO:
Judge Wood owes the litigants an apology. You don't toss around aspersions like that, particularly in a forum where people cannot defend themselves, without knowing for sure that what you're implying is true. It's nasty and unacceptable and very unbecoming of a judge.

I'd be willing to bet that if you asked 100 lawyers where "a pound of flesh" came from, you wouldn't find too many who have even read the Merchant of Venice, let alone to remember the "pound of flesh" reference if they did read it.

And, as I recall, I didn't really find the play all that anti-Semitic. Shylock's point of view came across quite well.
7.13.2008 11:44pm
emsl (mail):
Any comparison between the "black hole" fracas and this situation is either intentionally obtuse or just plain ignorant. A black hole is, in physics, something that not even light can escape. Thus, it would be "black" in the sense that the object itself would be absolutely unlit, even by reflected light. In the context of an office that applications go into but never emerge, it is particularly apt because that is, in some sense, the defining characteristic of this physical item. Those who professed to take offense at the use of this on the theory that it somehow denigrated a particular race either did not understand that it had nothing to do with race or were trying to play the race card for political advantage. Put another way, under any rational analysis, they were wrong to take offense.

In contrast, "The Merchant of Venice" is a patently anti-Semitic play. This is not in dispute. Shylock is one of the most famous caricatures of the Evil Jew in literature, fulfilling many, if not all, of the traditional paradigm. Invocation of that image is fraught with danger whenever it is used in reference to anyone Jewish. In essence, the lawyer was saying that the plaintiffs were just like Shylock in making an unreasonable demand -- suggesting (whether intentional or not) that the common thread was Judaism.

In the same way that one would be extra-cautious in quoting Othello in connection with an African American plaintiff or Taming of the Shrew in connection with a female plaintiff, this reference was inappropriate at best and could have gone horribly wrong before a different court. To do so in a case that focused on religion only makes this reference even more offensive.
7.13.2008 11:46pm
Sasha Volokh (mail) (www):
wm13: A "pound of flesh" reference is a Shylock reference, whether or not it explicitly mentions Shylock. I don't mean that negatively -- as I mentioned, I wasn't offended, and I'm not ready to say that it's fair for anyone to be offended by it.

Making an implicit Shylock reference doesn't mean you're anti-Semitic. Hell, even if you mention Shylock explicitly, it wouldn't necessarily mean you're anti-Semitic! Lots of texts have more than one valid interpretation, so mentioning the pound of flesh could be a jab at Jews, or it could be a reference to exorbitant damages, and it could even mean five different things. I oppose saying that an implicit or explicit reference to Shylock has only One True Meaning, which must be anti-Jewish -- and I suspect you and I would agree on that.

Nonetheless, I think that a pound of flesh reference is also accurately described as a Shylock reference. Both "Shylock" and "pound of flesh" refer back to the same work of literature that contains both of those elements. Now the fact that it has several interpretations means that the author may have had an innocent intent. The fact that many people aren't educated in that sort of literature means that the author himself may have been unaware of all the associations, and that many people, as a practical matter, won't be offended.

But as a descriptive matter, I think it's fair to say that a pound of flesh reference is a Shylock reference; the exact bit of the reference that's made explicit isn't that important. If it would be fair for someone to take offense at an explicit Shylock reference in this context (which I'm not necessarily granting), then I think it would be just about as fair for someone to take offense at a pound of flesh reference. I'm stressing that it might be equally unfair to take offense at either one, which is why I'm limiting myself to the claim that it's bad litigation strategy.
7.13.2008 11:57pm
anon252 (mail):
Put another way, being offended by the use of "black hole" in the relevant context seems a reflection of the ignorance of the offendee, who obviously doesn't know what a black hole is or why it's called that.

Using a Shylock reference to refer to Jewish plaintiffs in a discrimination lawsuit is at best a reflection of the ignorance of the offender; the attorneys may very well not have known the origin of "a pound of flesh," but it's bad lawyering to use a potentially embarassing literary allusion if you don't know the source.
7.14.2008 12:14am
SPO:
anon252, that assumes that people know it's a literary reference . . . . .
7.14.2008 12:35am
JB:
So the equivalent for blacks would be referring to, say, Al Cowlings as OJ's Iago (thus implying that OJ is an unbalanced black man who would willingly kill his wife on the barest suspicion that she was having an affair)?

Meh. Insensitive, perhaps, unwise, perhaps, inapt, not at all.
7.14.2008 12:44am
Tony Tutins (mail):
I strongly suspect this started as a childish attempt to get even for some imposition of the hallway/door rule that the Blochs instigated -- or some other aspect of the interpersonal friction of living as neighbors for 30 years. Maybe someone found the rules kept them from hanging a Christmas wreath from their door. A rational homeowner would not want to discourage Jews from buying there, because they make up a significant fraction of the residents of that neighborhood.
7.14.2008 12:55am
FlimFlamSam:
I think Judge Wood was being overly sensitive here, and I don't find the usage offensive. The lawyers clearly didn't intend the "pound of flesh" reference to be offensive, and pretending otherwise for rhetorical gain (as Judge Wood does) is not only improper but rude.

So I guess the obligation now is before any idiom with a literary connection may be used, the source must be scanned for racism, sexism, etc. Ludicrous.

I would venture to say that the percentage of people at large and lawyers in general who know that "pound of flesh" came from Shakespeare and had the offensively Jewish connection is pretty low. I didn't know that until reading about all this. And before we start making "Birth of a Nation" comparisons, nothing from "Birth of a Nation" made its way into the language the way Shakespeare has, so one would have to go digging for a "Birth of a Nation" quote. One does not have to dig at all to come across Shakespearean turns of phrase in English. That comparison is hopelessly inapt.
7.14.2008 7:00am
Some Idiot (mail):
What the heck is a mezuzot?
7.14.2008 7:22am
emsl (mail):
Some Idiot --

It would probably be useful in joining a discussion of a legal opinion to actually read it before you post.
7.14.2008 8:31am
tarheel:

What the heck is a mezuzot?

To truly understand the mezuzot, you'll have to watch this episode of Curb Your Enthusiasm.

Short version . . . in an emergency, Larry steals his father-in-law's "Christ Nail" -- a replica of the nails used to crucify Jesus -- and uses it to hang up his mezuzot.
7.14.2008 8:32am
Jake (Guest) (mail):
Another close analogy would be to refer to your opponent's arguments as "hysterical" in a gender discrimination case. Or if you could somehow work "uppity" into your reply to a race discrimination complaint.

The ultimate outcome of the case doesn't change the boneheaded nature of the comment. You can still win a case no matter how hard you try to look like a jackass, just don't expect to see any close calls go your way.
7.14.2008 8:36am
Happyshooter:
I strongly suspect this started as a childish attempt to get even for some imposition of the hallway/door rule that the Blochs instigated -- or some other aspect of the interpersonal friction of living as neighbors for 30 years. Maybe someone found the rules kept them from hanging a Christmas wreath from their door.

I would bet a dollar on this being the case.

My guess is that the plaintiff, who passed the rule, used it to knock down some resident's Christmas wreath. I would also guess she did it while having the mezuzot on her door.

Then she lost her position of power on the board and didn't like the taste of living under her own rules.
7.14.2008 9:03am
Prof. S. (mail):
I really question how many people know this reference or would understand it at first glance. I know I didn't. I also know that my wife - who, as best as I can tell, has read virtually every classic book ever written - also didn't pick up on it when I told her.

Again, if it was so obvious, it wouldn't require a long explanation by Judge Wood.
7.14.2008 9:06am
carpundit (www):
Though it seems niggardly to point it out, "mezuzot" is plural. It is more than one mezuzah. Here's an explanation.

BTW, I cannot believe any condo board would do such a thing. Then again, I'm on a condo board and I have a mezuzah on my door, so maybe I'm too close to it.
7.14.2008 9:17am
wm13:
carpundit, I think "pedantic" would be a better word for your comment than "niggardly."

Now I've offended most of the Conspirators!
7.14.2008 9:33am
Ken Arromdee:
I would venture to say that the percentage of people at large and lawyers in general who know that "pound of flesh" came from Shakespeare and had the offensively Jewish connection is pretty low.

You've got to be kidding.
7.14.2008 9:41am
Jay:
I'm intrigued by the line a number of commentators take--if you can imply an ethnic slur in a sufficiently obscure way that it will go over a lot of people's heads, then go for it, and accuse anyone who notices of imagining things because it "takes them a paragraph"(!) to explain it.

As others have pointed out, this is the precise opposite of the "black hole" scenario, in which the supposed racial meaning was entirely superficial--i.e., the word "black," which has many meanings, one racial, was being used in a phrase which has nothing whatsoever to do with race.
7.14.2008 10:23am
Happyshooter:
You've got to be kidding.

My college lit included no Shakespeare at all. We were, however, forced to read lots of Sontag. Oh, and whatever black author was trendy at the last conference that prof went to five years before. Lots of Sontag.

I don't usually hold with book burnings, but old Susan's pap is an exception.
7.14.2008 10:26am
wm13:
Jay, it's actually a contemporary (mis)reading of "The Merchant of Venice" to read it as being anti-Semitic or even about the Jews. The Jewish moneylender was a stock character of Elizabethan drama; there were no Jews in England and most of Shakespeare's audience had never seen a Jew. Obviously, if people want to import contemporary concerns into a 400-year-old play, I can't stop them, anymore than I can stop people from importing contemporary racial concerns into the language of modern astrophysics; I just think it's silly.

Do you think "Richard III" is really about unjust discrimination against people with disabilities?
7.14.2008 10:52am
David M. Nieporent (www):
Judge Wood owes the litigants an apology. You don't toss around aspersions like that, particularly in a forum where people cannot defend themselves, without knowing for sure that what you're implying is true. It's nasty and unacceptable and very unbecoming of a judge.
Uh, the litigants didn't say it; the lawyers did. What she accused the litigants of doing, potentially, was discriminating against Jews, but it's rather hard to write an opinion allowing a discrimination lawsuit to proceed which doesn't imply that as a possibility.

I'd be willing to bet that if you asked 100 lawyers where "a pound of flesh" came from, you wouldn't find too many who have even read the Merchant of Venice, let alone to remember the "pound of flesh" reference if they did read it.
Perhaps I have more faith that lawyers are not utterly ignorant of the Western canon. While I agree that many Americans would not get the reference, one would hope that lawyers are better educated than the average American.
And, as I recall, I didn't really find the play all that anti-Semitic.
You're kidding, right? There's a reason that "Shylock" has been used as an anti-semitic epithet for centuries.
7.14.2008 11:05am
David M. Nieporent (www):
Jay, it's actually a contemporary (mis)reading of "The Merchant of Venice" to read it as being anti-Semitic or even about the Jews. The Jewish moneylender was a stock character of Elizabethan drama; there were no Jews in England and most of Shakespeare's audience had never seen a Jew.
Your second sentence in no way supports your first. If the history of the world teaches us anything, it's that the presence of Jews is not a prerequisite for anti-Semitism.

(Indeed, to point out the obvious, the more familiar with Jews one is, the less anti-semitic one is; the same goes for other forms of bigotry.)
7.14.2008 11:12am
byomtov (mail):
Jay, it's actually a contemporary (mis)reading of "The Merchant of Venice" to read it as being anti-Semitic or even about the Jews. The Jewish moneylender was a stock character of Elizabethan drama; there were no Jews in England and most of Shakespeare's audience had never seen a Jew. Obviously, if people want to import contemporary concerns into a 400-year-old play, I can't stop them, anymore than I can stop people from importing contemporary racial concerns into the language of modern astrophysics; I just think it's silly.

No. It's not a misreading. The very fact that the Jewish moneylender was a stock figure means Shakespeare was propagating an anti-Semitic stereotype. And of course the absence of Jews from England was no coincidence.

That Shakespeare manages to humanize Shylock, rather than presenting him as a complete stereotype, is a tribute to his genius as a playwright, not evidence that he was trying to avoid anti-Semitism. Think of the play's ending.
7.14.2008 11:56am
Per Son:
No Jews in England? Is that true?
7.14.2008 11:57am
Per Son:
Nevermind. I looked it up. Jews were forcibly expelled for 350 years.
7.14.2008 11:59am
Soronel Haetir (mail):
I would just like to point out the contradictory nature of the claim that a lawyer unfamiliar with the origin of the phrase "pound of flesh" should then not use it because of that origin. How can someone be guilty of insensitivity for using a phrase that has gained such wide usage entirely unconnected with its source? It would be akin to calling someone who drinks a twelve pack of coca-cola a cokehead.
7.14.2008 12:04pm
Per Son:
Reasearch is fun. Shylock was based on a real individual according to some people. http://en.wikipedia.org/wiki/Rodrigo_Lopez_(physician)

The concept of SHylock was well known in Europe. Jews were banned from most trades, and in many instances were only able to make money in the money lending business. This was then used as a reason to further propigate anti-semitism. Look at the art/paintings of the Shylock character, and tell me if they would not find great home in Der Sturmer. Moreover, shylock embodied the very common stereotype of Jews as money-grubbing leeches. This has survived to this day.
7.14.2008 12:05pm
Per Son:
People are missing the point here. The point is to be careful when putting peladings together, especially when defending against allegations of discrimination.

Not a rule of practice, just a suggestion.
7.14.2008 12:07pm
SPO:
David Nieporent, well, since I haven't read the play in like 30 years, perhaps I can be forgiven a bit, but as I recall, Shylock made a couple of sympathetic speeches (Hath not a Jew eyes; Hath not a Jew hand, organs, dimensions, passions . . . .) He also stated how Antonio had spet on his garberdine and mocked him for his moneys and usances--by the way, this is all from memory.

It seemed to me that Shakespeare gave Shylock a voice, and that voice was somewhat sympathetic.

But Judge Wood's imputation of bias was wrong. It likely was an innocent mistake.
7.14.2008 12:53pm
luagha:
What I find terribly amusing about the whole 'black hole' business is that the term is popular enough, or common enough, or understood enough amongst young black people to be used in basketball terminology in a popular commercial.

In basketball play, teamwork and passing are fundamental, and what used to be called 'ball hogs' (players who always drive to the basket and shoot themselves rather than taking the opportunity to spot someone who is more free than them and passing to them) are now called 'black holes.'

Admittedly, it's not a good thing to be called a black hole of a basketball player but it has less than nothing to do with race and players may accuse one another of it (so as to help them correct their tendencies) at any time.
7.14.2008 1:13pm
luagha:
What I find terribly amusing about the whole 'black hole' business is that the term is popular enough, or common enough, or understood enough amongst young black people to be used in basketball terminology in a popular commercial.

In basketball play, teamwork and passing are fundamental, and what used to be called 'ball hogs' (players who always drive to the basket and shoot themselves rather than taking the opportunity to spot someone who is more free than them and passing to them) are now called 'black holes.'

Admittedly, it's not a good thing to be called a black hole of a basketball player but it has less than nothing to do with race and players may accuse one another of it (so as to help them correct their tendencies) at any time.
7.14.2008 1:13pm
Karl Stucky (mail):
The quote from the opinion:


Indeed, especially given the fact that the question in this case is whether a trier of fact could conclude that the defendants were intentionally discriminating against the Blochs, it was shocking to read at the end of their supplemental brief that "[t]hroughout this matter, Plaintiffs have been trying to get their 'pound of flesh' from Defendants due to personal animosity between Lynne and Frischholz."
Perhaps the defendants have not read Shakespeare's
Merchant of Venice lately and thus failed to recall that the
play is about a bitter Jewish moneylender, Shylock, who
agreed to loan funds to a man he loathed (Antonio—who
spit on him because he was Jewish) only upon a promise
that if the loan was not paid in time, Shylock would be
entitled to carve a pound of flesh from Antonio. At the end
of the play, after the disguised Portia defeats the contract
by pointing out that Shylock is not entitled to shed any
blood while he takes his pound of flesh, Shylock is punished
by losing half of his lands and being forced to
convert to Christianity. This is hardly the reference someone should choose who is trying to show that the stand-off about Hallway Rule 1 was not because of the Blochs' religion, but rather in spite of it. See ante at 5, citing Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 279 (1979


This is funny. If it wasn't for the damn anti-discrimination laws, people would be better able to self-select where they live, and there would be far fewer problems.

And, for what it's worth, I think it's clear that the fascistii who ran the Board hated the Blochs. The majority takes pains to convey that between the lines. The punishment for being disliked is that people will treat you less kindly. Maybe the Blochs should have spent less money on attorneys and more on courses like Dale Carnegie's How to Make Friends and Influence People.
7.14.2008 1:21pm
David M. Nieporent (www):
This is funny. If it wasn't for the damn anti-discrimination laws, people would be better able to self-select where they live, and there would be far fewer problems.
As a libertarian, I don't believe in laws against private discrimination, but here's a hint: you might want to take your history lessons from someone other than Ron Paul. There were not "far fewer problems" before "the damn anti-discrimination laws" were passed.
7.14.2008 1:28pm
Leopold Stotch:

Anyone who requires an explanation of this allusion is an ignoramus. I know I'm describing lots of people, but come on, folks, it's not that obscure.


OK, then, I'm going to dime myself out as an ignoramus. I have undergrad and law degrees from respectable schools (a federal service academy, and a law school in the mid-thirties on the USN&WR rankings), and I finished above the 70th percentile at both of them. I've read some Shakespeare, but I've never read The Merchant of Venice -- and until I read this post, I never knew the origin of the phrase "a pound of flesh."

I suspect I'm not the first such ignoramus who's ever managed to obtain a law license.
7.14.2008 1:56pm
Kenvee:
Leopold, I'm with you. I've read a number of Shakespeare plays, but Merchant of Venice is not one of them, although I'm familiar with the basic plot. If I'd been asked before hearing about this opinion what the origin of the phrase "pound of flesh" meant, I would have guessed it came from the same source as "eye for an eye". It's a phrase that has entered common parlance, and I don't think that the average person using it would have any of the subtext the judge has read into it.

Incidentally, I checked with a coworker of mine who is Jewish, and he'd never heard of the origin of the term and never thought of it as anti-Semitic.
7.14.2008 2:41pm
byomtov (mail):
Leopold,

OK. I exaggerated. Sorry.

I'm one of those who think a strong familiarity with Shakespeare is part of being educated, but I may overdo it.

This incident reminds of the joke about the woman who told her friend she didn't understand all the fuss about Shakespeare.

"All he did," she said, "was take a bunch of well-known sayings and string them together."
7.14.2008 2:52pm
Tony Tutins (mail):
I'm going to suggest that the anti-Semitic elements of the plot have kept the Merchant of Venice out of the Shakespeare survey courses over the past half-century, much as Uncle Remus and Little Black Sambo have disappeared from children's literature.
7.14.2008 3:14pm
Karl Stucky (mail):
David M. Nieporent:


As a libertarian, I don't believe in laws against private discrimination, but here's a hint: you might want to take your history lessons from someone other than Ron Paul. There were not "far fewer problems" before "the damn anti-discrimination laws" were passed.


I am sure there were "problems" before discrimination laws were passed. I am even more sure that if those laws, and others that restrict freedom such as rent control laws, disappeared, there'd be "far fewer problems." How could it be otherwise?
7.14.2008 3:18pm
Per Son:
Ugh. The game of telephone is over, as it is no longer about the original topic: the statement by Judge Wood and discussion of the phrase and links to anti-semitism.

Now it is about pro/con libertarian arguments.
7.14.2008 3:28pm
Eric Elerath:
Sasha Volokh - Correct me if I'm wrong (I'm sure you will), but you seem to exhibit a personal desire to berate others, including attorney colleagues, for their stupidity and ignorance. So I have a question for you.

Why does architecture not have first amendment recognition? On what legal theory can architectural symbolism be regulated?

Consider what happens when a mezuzot, or its case, is nailed or screwed or otherwise permanently affixed to a door or gate. It becomes an improvement to real property, no? It's part of the building. It conveys some symbolic meaning. That's what architecture is, no?

So now suppose I purchase a property covered with symbolic ornaments and I don't like those symbols - perhaps my religion eschews icons, or I have a different religion or maybe I think they are ugly - why can't I remove them? Penn Central v New York says the government can prevent me from altering the symbolic content of my own property.

Could you please clarify this for someone who has never been to law school? Please feel free to call me stupid and ignorant, too, because I can't figure this one out.

Thanks in advance.
7.14.2008 4:07pm
SPO:
Of course, when judges ask questions in a case involving Israel about ovens being shipped to Nazi Germany, we don't see fellow judges calling him out . . .
7.14.2008 5:03pm
Yankev (mail):
SPO, you lost me. The State of Israel was not established until 3 years after the fall of Nazi Germany, and the Kingdom of Israel had no existence as a political entity for some 1800 years before that. What are you talking about when you refer to a "case involving Israel about ovens being shipped to Nazi Germany"?
7.14.2008 6:35pm
Jim Touhey (mail):
One of my favorite examples of the knowing use of such language comes from an amicus brief filed in the Supreme Court by Protestants and Other Americans United For Separation of Church and State (which has since shortened its name to Americans United etc.) in the case of Bd. of Ed. v. Allen. In arguing in support of the appellants that a New York statute allowing the use of public funds to purchase of texbooks for children attending religious schools violated the First Amendment's Establishment Clause, the American United argued that the state legislature thereby intended to aid Roman Catholic parochial schools. Americans United asserted that "[s]uch an objective is so dear to the hearts of God-fearing Christians of the Roman Catholic persuasion that it is conceivable that they would put their religious convictions above constitutional limitations." Br. at 11. Fair enough. Americans United went on to decry the practice of legislators who attempted to provide cover to this campaign to aid Catholic schools by using the euphemism "non public schools" to refer to them. As stated by Americans United: "When legislators give up the practice of calling 'church-related schools' 'non public schools' the credibility gap will be substantially narrowed. Till then the fig leaf of jesuitical legislative draftsmanship must be lifted to identify the sects involved." Id. Jesuitical legislative draftsmanship! Pesky papists.
7.15.2008 4:54pm
b-rob (mail):
A management side employment lawyer's perspective:

"Black hole" is a scientific term that COULD be wryly used in a racial manner. Such as "They called that particular department the 'Black hole' because of all the Black people working there." It is all about context.

The person who put a Shylock reference in a brief about anti-Semetic discrimination is a moron. I am glad Judge Wood, my old civ pro professor, pointed out the obvious smarmy, smug insensitivity. I have seen that kind of behavior before when people do not respect anti-discrimination laws. The lawyer knew exactly what he was doing. He may not lose the case over it, but he should lose a client or two for the poor judgment.
7.16.2008 6:19pm