Category Archives: novelty

A Joke

In a May 2006 speech, then-Judge Sotomayor told the following joke about the difference between supreme court, circuit court, and district court judging:

It involves three judges who go duck hunting. A duck flies overhead and the supreme court justice, before he picks up his shotgun, ponders about the policy implications of shooting the duck — how will the environment be affected, how will the duck hunting business be affected if he doesn’t shoot the duck, well by the time he finishes, the duck got away.

Another duck flies overhead, and the circuit judge goes through his five part test before pulling the trigger — 1) he lifts the shotgun to his shoulder, 3) [sic] he sights the duck, 3) he measures the velocity of the duck’s flight, 4) he aims, and 5) he shoots—and, he misses.

Finally, another duck flies by, the district judge picks up the shotgun and shoots. The duck lands and the district judge picks it up, swings it over his shoulder and decides that he will let the other two judges explain what he did over dinner.

From the National Review.

Arguments only a Lawyer Could Make with a Straight Face: A Burrito is a Sandwich

When Panera Bakery signed a lease agreement with the White City Mall of Massachusetts in 2001, they included an exclusivity clause that both parties agreed to restricted White City from entering into new leases with businesses that primarily sell sandwiches.

Easy right? Fast forward 5 years and White City Mall signs a lease agreement with Qdoba Mexican Grill to lease space in the same food court.

Panera went bananas. They started threatening litigation, demanding recission of the Qdoba lease agreement, and rolling around red-faced on the floor. Panera believed and later asserted that tacos, burritos, and quesadillas fell within meaning of “sandwiches” and therefore, White City was prohibited from leasing to Qdoba under the Lease. “Au contraire my little baker friend,” replied the opposing counsel and the court. Superior Court Judge Jeffery Locke opined in a seven page opinion:

The New Webster Third International Dictionary describes a “sandwich” as “two thin pieces of bread, usually buttered, with a thin layer (as of meat, cheese, or savory mixture) spread between them.” Under this definition and as dictated by common sense, this court finds that the term “sandwich” is not commonly understood to include burritos, tacos, and quesadillas, which are typically made with a single tortilla and stuffed with a choice filling of meat, rice, and beans.

This has got to be the first time that a court had to delineate the characteristics of the sandwich in a judicial opinion. And if that wasn’t enough, the Court put a final nail in Panera’s burrito-is-a-sandwich coffin: “Even though Panera vigorously argued for a broad definition of ‘sandwiches’ under the lease agreement to include food products sold by Qdoba, this argument does not change the fact that burritos, quesadillas, and tacos are not commonly understood to mean ‘sandwiches.'”

Prof. Marjorie Florestal of McGeorge finds the fact that Judge Locke leaned so heavily on common sense in this case troubling. In the introduction to her law review article she writes, “In short, a judge’s common sense or gut-level intuitive reactions– while permissible and useful–must undergo a second layer of logical, deliberative reasoning if she is to arrive at a truly holistic and fully-formed assessment of the case.”

While the Professor is correct that law requires such analysis, things like “Is a burrito a sandwich?” “Is waterboarding torture?” and “Is a horse a bird?” ostracize the layman and offend our notions of reality when lawyers try to justify the absurd conclusion.

White City v. PR Restaurants (2006).

Ethics Ruling: Judges May Not Friend Attorneys on Facebook Who Appear in Their Courts (FL)

The Committee believes that listing lawyers who may appear before the judge as “friends” on a judge’s social networking page reasonably conveys to others the impression that these lawyer “friends” are in a special position to influence the judge….  The issue, however, is not whether the lawyer actually is in a position to influence the judge, but instead whether the proposed conduct, the identification of the lawyer as a “friend” on the social networking site, conveys the impression that the lawyer is in a position to influence the judge.  The Committee concludes that such identification in a public forum of a lawyer who may appear before the judge does convey this impression and therefore is not permitted.

From the Florida Supreme Court.com.

When Justices Agree to Disagree

Mr. Justice Black, with whom Mr. Justice Goldberg joins, dissenting while delighting in smokey, delicious whiskey.

Although I was brought up to believe that Scotch whisky would need a tax preference to survive in competition with Kentucky bourbon, I never understood the Constitution to require a State to give such preference. (My dissenting Brother asks me to say that this statement does not necessarily represent his views on the respective merits of Scotch and bourbon.)

Dept. of Revenue v. James Beam Co., 377 US 341 (1964)

When Sexual Theatrics Go Wrong

State v. McGacken. Things went from great to terrible for Brian McGacken in a matter of minutes. During a tryst with his girlfriend, neighbors overheard something that sounded like a woman being accosted but was in fact a very satisfied customer:

Responding to an anonymous 911 call, state troopers went to Brian McGacken’s home on Feb. 17, 2007, and he answered the door dressed in a bathrobe. When he explained the source of the noise [a woman screaming blood murder], the troopers asked to speak to his girlfriend. She came downstairs wearing a towel and confirmed his explanation. Nevertheless, the troopers asked McGacken for identification. He went upstairs to retrieve it and did not object when a trooper followed him.

On the second floor, the trooper smelled raw marijuana and saw McGacken use his foot to push a tray under a couch. Asked what was on the tray, McGacken admitted it was marijuana. In the bedroom, the trooper saw bagged and loose marijuana as well as growing plants. Arrested, McGacken consented to a search of his home, resulting in the seizure of 12.5 ounces of loose and bagged marijuana, 15 plants and marijuana-related equipment and paraphernalia.

McGacken tried to suppress the evidence on the grounds that the cops lacked a reasonable basis to enter his home after providing a logical explanation for the screaming. Generally, the cops can’t use any evidence they find in your house unless they have a reason to be there. Any evidence obtained during an illegal search is subject to the exclusionary rule. U.S. v. Mapp. Unfortunately for McGacken, the court held that the cops were operating under the duty to rescue when they entered his home and consequently anything illicit obtained during that search is admissible. McGacken has been sentenced to 10 years in the clink. Here’s hoping, for us all, he appeals.

From Law.com.

(for some reason when you google image search “sexual theatrics” there’s a lot of hits for the Salem Witch Trials and Adam Lambert)

Pulp in Opinion

Chief Justice Roberts shows off his literary chops by opening one opinion with a passage that reads straight out of Dashiell Hammett pulp:

North Philly, May 4, 2001. Officer Sean Devlin, Narcotics Strike Force, was working the morning shift. Undercover surveillance. The neighborhood? Tough as a three-dollar steak. Devlin knew. Five years on the beat, nine months with the Strike Force. He’d made fifteen, twenty drug busts in the neighborhood.

Devlin spotted him: a lone man on the corner. Another approached. Quick exchange of words. Cash handed over; small objects handed back. Each man then quickly on his own way. Devlin knew the guy wasn’t buying bus tokens. He radioed a description and Officer Stein picked up the buyer. Sure enough: three bags of crack in the guy’s pocket. Head downtown and book him. Just another day at the office.

Pennsylvania v. Dunlap.

Ninth Circuit Changes Mind, Audiences Wowed

After it’s 2002 ruling that the word “under God” placed in the pledge of allegiance by a 1954 law aimed at battling godless communist was in fact a religious prayer in violation of the Constitutional guarantee of the separation of church and state, the Ninth Circuit reversed itself deciding last week that, no, it was not. Rather:

The daily schoolroom ritual is not a prayer, but instead “a recognition of our founders’ political philosophy that a power greater than the government gives the people their inalienable rights.”

So take that anti-American communist. We’ve got limited government guided by the Almighty; all you’ve got is a bunch of dudes.

Literary Works in Legal Fiction

Continuing in a showcase of law review articles you might want to read comes Todd Henderson’s Citing Fiction. Like Professor Alex Long’s piece on the most frequently cited musicians, Henderson’s article takes a look at how judges utilize literature to spice up their opinions. The author goes to pains to refine his methodology to remove instances of the bastardized Orwellian and Kafkaesque and takes a separate look at references made for literary effect — that is those employed rhetorically to evoke an emotional response in the reader. Can you imagine, an emotional response in a judicial opinion? How novel. Here’s your top ten and note that Shakespeare gets kicked down a peg or two from one column to the other.

Author Frequency of Citation Frequency of Citation for Literary Effect
1. George Orwell 61 45
2. William Shakespeare 35 7
3. Franz Kafka 34 25
4. John Milton 20 11
5. Homer 14 11
6. Geoffery Chaucer 14 –
7. Oscar Wilde 14 –
8. John Donne – 9
9. Robert Bolt – 9
10. Albert Camus – 8

Honorable mentions: Dostoevsky, Voltaire, and Faulkner. A few more findings:

  • “In the Seventh Circuit, Judges Posner and Easterbrook combined for nearly all citations to fiction, and over 80 percent of all references to George Orwell.”
  • “[O]f the 110 Supreme Court justices who have served, only 21 have ever cited to the authors or works in this survey. The leading Supreme Court fiction citers are Justices Douglas, Stevens, Brennan, and Rehnquist, each of whom has cited to fiction around five times. These four justices account for almost 50 percent of all Supreme Court citations to fiction.”
  • “[J]ustices appointed by Democrats or with an otherwise liberal voting record made almost 80 percent of all literary citations.”
  • “In the Supreme Court, nearly three-quarters of literary citations are in dissenting or concurring opinions (63 percent in dissenting; 27 percent in majority; and 10 percent in concurring). In the circuit courts, by contrast, the reverse is largely true, with about 64 percent in majority opinions and 36 percent in dissenting and concurring opinions.”

Todd Henderson’s Citing Fiction.

Even Livermore goes a little crazy sometimes

“Earlier this month, members of Bay Area Open Carry gathered at a Peet’s Coffee & Tea in Livermore, triggering a 911 call. Cops responded and frisked one man during his interview with ABC7 (see video via the link below). And last week’s meeting at the Peet’s in San Ramon caused quite a stir among customers who both disapproved and praised the heat-packing patrons, according to The Oakland Tribune.”

That’s just east bay knuckleheads being east bay knuckleheads. Which fits in nicely with this whole Mt. Reagan debate.

From The Scavenger at the Chron.