Rock Music in Judicial Opinions (Jonathan Goodman) Topic: Rock music in jud. Opinions & legal writing Interactive presentation Stop comments to ask questions Don’t shout out answers Please give name, firm (agency, company, school or court) FBA – not provided budget for awards for correct answers Resign yourself to winning admiration of peers First, introduce law clerks Like you, today first time hearing comments & info means eligible to answer questions b/c no idea what asking 1 Start interactively: Which S Ct justice quoted Dylan in concurring op. in civil case re: police officer’s civil rights lawsuit challenging police dept’s review of text messages on city‐issued equipment ‐ And name the lyric (2‐part question) Scalia – in City of Ontario, Cal. V Quon 130 S. Ct. 2619 (2010) “the times they are a changin’ But did not identify song, album or performer Title track of 1964 album of same name Incidentally, ct did not determine if officer had reas. Exp. of privacy in employer‐provided comm. devices 2 Instead, ct. held search reasonable Next interactive question: also concerns a S Ct opinion ‐‐ Which justice is believed to be first to quote rock lyrics in opinion? (Scalia not the first) In answer, give name justice, performer & lyric Chief Justice Roberts, in Sprint Comm. Co., L.P. 554 U.S. 269 (2008) Dissenting opinion v. APCC Services, Inc. Cited Dylan: “When you got nothing, you got nothing to lose” CJ Roberts cited specific info about song: “Bob Dylan, Like a Rolling Stone, on Highway 61 Revisited 3 (Columbia Records 1965) Issue concerned standing – and Roberts took position that plaintiffs lacked standing Some controversy about accuracy of the lyric he quoted: In fact, the NY Times wrote about it at the time: Story entitled: “The Chief Justice, Dylan and the disappearing double negative,” reporter Adam Liptak, in story from June 29, 2008, outlines the confusion Initially, reporter quotes Alex b. Long, a law professor described in article as “perhaps the nation’s leading authority on the citation of popular music in judicial opinions,” as saying it was “almost certainly the first use of a rock lyric to buttress a legal proposition in a S Ct. decision” Professor Long called it a “landmark opinion” 4 But article says Dylan’s actual lyric is: When you ain’t got nothing, you got nothing to lose” So, the word word “ain’t” is missing from J. roberts’ quote Professor Long blames the gaffe on the law clerks ‐ He predicts they used the internet instead of checking lyrics from the original source Third interactive question ‐‐ concerns music, but not rock: Which S Ct justice quoted opera in a case where the narrow question was “whether the right of the public and press to attend criminal trials is guaranteed under the United States constitution?” Name justice and the opera [William Rehnquist, quoting the G & S operetta “lolanthe”] Richmond Newspapers, Inc. v Virginia 5 448 U.S. 555 (1980) The S Ct, in a decision written by chief Justice Burger with 2 justices concurring and 4 concurring in judgment, held Absent overriding interest articulated in a judge’s findings, a criminal trial must be open to the public Justice Rehnquist, then an associate judge, thought this holding was a bunch of nonsense, with no const. underpinnings He concluded that nothing in const. prohibited judge from closing trial when prosecutor, defendant & judge all agree to close trial He criticized the holding, saying “it is basically unhealthy to have so much authority concentrated in a small group of lawyers who have been appointed to the Supreme Court and enjoy virtual life tenure.” To make his point, he quoted the operetta, citing the “Lord Chancellor”: “the Law is the true embodiment 6 Of everything that’s excellent It has no kind of fault or flaw, And I, my Lords, embody the law” Next, going to cite l. r. article by own Adalberto Jordan (11th) “Imagery, Humor, and the Judicial Opinion” 41 U Miami L Rev. 693 (Jan. 1987) Judge Jordan provides several reasons justifying the use of imagery in judicial opinions: (which I construe to include rock lyrics) 1. Helps demystify law 2. Help crystallize a point, put it in context, breathe life into the set of facts 7 Basically, makes opinion easier to read & understand 3. Way for judges to achieve self‐fulfillment In other words, makes job more enjoyable 4. Illustrate the inherently human nature of law & those charged with administering it 5. Finally, can help a judge avoid boredom Rock lyrics: used in : Law review articles Other journals Judicial opinions, both trial level & appellate Federal & state cases Federal level: 8 S ct. justices Circuit courts of appeals judges District court judges Federal magistrate judges CLE programs Pa. Bar Institute held two ethics Cle programs on “Bruce Springsteen & the American Lawyer” Rock music also Subject of seminars & symposiums One law school assembled a panel which included the Pa. State Atty General and a Pa. S. Ct. Justice to discuss Springsteen The Pa. State Atty General even wrote an article entitled “The Lawyer‐Advocate vs. the Poet‐Advocate” 14 Widener L. Rev. 737 (2005) And the Pa. S. Ct. Justice wrote, ‘What an advocate can learn from Springsteen” 14 Widener L Rev. 743 (2005) 9 Widener Law School sponsored a seminar on Springsteen, attended by 120 lawyers from 17 states and from D.C. ABA Journal published article about seminar entitled: “Hungry Hearts: Some Attorneys Are Born to Run to Seminar on Springsteen & The Law” (March 4, 2005) As you might imagine, some l. r. articles have fascinating titles: “The Judgment of the Boss on Bossing the Judges: Bruce Springsteen, Judicial Independence, and the Rule of Law” 14 Widener L. Rev. 885 (2005) But ‐‐ time to get back to some interactive questions • Which famous rock artist was sued for allegedly plagiarizing his own song in a case which reached the U.S. 10 Supreme Court? (name musician& group he was with when first song issued) John Fogerty, from Creedence Clearwater Revival Fogerty v. Fantasy, Inc. 510 U.S. 517 (1994) Case had to do with attorney’s fees under the Copyright Act of 1976 and what standards should inform court’s decision to award fees to a prevailing D in a copyright infringement action Rather than paraphrase S. Ct’s summary of facts, I think it’s best to quote it ‐‐ especially b/c I absolutely love the footnote: Text: Petitoner John Fogerty is a successful musician, who, in the late 1960’s, was the lead singer and songwriter of a popular music group known as “Creedence Clearwater Revival.” In 1970, he wrote a song entitled “Run Through the Jungle” and sold the exclusive publishing rights to predecessors‐in‐interest of respondent, Fantasy, Inc., who later obtained the copyright by assignment. The music group 11 disbanded in 1972 and Fogerty subsequently published under another recording label. In 1985, he published and registered a copyright to a song entitled ‘The Old Man Down the Road,’ which was released on an album distributed by Warner Brothers records, Inc. Respondent Fantasy, Inc. sued Fogerty, Warner Brothers, and affiliated companies in district court, alleging that “the old man down the road” was merely “run through the jungle” with new words. The copyright infringement claim went to trial and a jury returned a verdict in favor of Fogerty.” Now, here’s the footnote, which is note 2, which S. Ct. dropped immediately after first mentioning the group’s name: Creedence Clearwater Revival (CCR), recently inducted into the Rock and Roll Hall of Fame, has been recognized as one of the greatest American rock and roll groups of all time. With Fogerty as its leader, CCR developed a distinctive style of music, dubbed “swamp rock” by the media, due to its southern country and blues feel” How’s that for a footnote? 12 What a tribute to Fogerty and the band – the S. Ct. has now officially certified the group as one of the greatest of all time. Now, follow‐up question concerning this case: Which justice wrote the opinion for the Court? Chief Justice Rehnquist In case any of you do intellectual property law, entertainment law or are otherwise curious about the holding – S. Ct. held that prevailing Ps and prevailing Ds are to be treated alike, but fees are to awarded to prevailing parties only as a matter of the court’s discretion B/c we’re in the 11th Cir, appropriate to mention 11th circuit case citing rock lyrics Specifically, Wachovia Bank N.A. v. U.S., 455 F.3d 1261 (11th Cir. 2006) 13 Case concerned which statute of limitations should apply to a trustee’s claim for a tax refund – the 3‐year statute for tax refund claims or the 6‐year statute for claims against U.S. when trustee never required to file the tax return. Opinion was written by Judge Carnes So, here’s the question: Given what I’ve told you about the facts – it’s a tax refund claim ‐‐ what rock song did Judge Carnes use to start out his opinion? For full credit, song, group & album The Beatles, Taxman, on Revolver (EMI records 1966) “The Beatles taxman told us what we’d see: There’s one for you, nineteen for me.” (Judge Carnes’s intro in opinion) 14 For you tax lawyers, the answer, which, according to Judge Carnes, “the Beatles probably would have guessed” is the shorter statute. ******************************************** Last month, Judge Stanley M spoke to us at monthly fba luncheon Many u familiar with his background: 11th Cir., dist. j., US Atty, strike force, Harvard L grad But guessing not as many know Judge M quoted S & G lyrics US v. McPhee, 336 F. 3d 1269 (11th Cir. 2003) First, facts & legal issue Crim case, D enters cond. Plea for consp. To PWID 100 kilos or more of mj while on vessel subject to US jurisd. „ In viol of Maritime Drug Enf. Act On appeal, D argued vessel not subject to juris b/c in Bahamain terr. waters, not int’l waters 15 Issue turned on whether Saint Vincent Rock is “r” or “i” If “I,” then vessel in B. waters If “r,” then vessel in I waters, or high seas Gov’t: Saint Vincent Rock is rock – if island, called island Opinion: Ct. must decide issue according to stat. def. But, Judge M notes that label not “altogether satisfying” Writing for 11th panel, Judge M says: “We can discern no reason why something could not be both a rock and an island at the same time” Then, Judge M writes, See, PS & AG, I am a Rock, on Sounds of Silence, Columbia Records 1966 Judge M then cites lyric:”I am a rock, I am an island” Line appears 4 times, and opinion cites them all 16 ‐including final reference: “I am a rock. I am an island. And a rock feels no pain. And an island never cries.” At that point, Judge M finishes with my favorite part: “Of course neither S nor G has been identified as a nautical expert.” BTW, 11th determ. St. Vicents Rock is a R, not an I „ Therefore, vessel in int’l waters – conv. affirmed ************************************************ A law professor named Jim Chen wrote an article entitled “Rock ‘N’ Roll Law School,” 12 Const. Comm. 315 (1995) That title is a play on words from a famous rock song ‐ Name the song, artist & album 17 The Ramones, rock n roll high school, “End of the Century” (warner brothers 1980). Prof. Long wrote often‐quoted l. r. article entitled “[Insert song lyrics here]: the uses and misuses of popular music lyrics in legal writing” 64 Washington & Lee L. R. 531 (2007) He did research re: most‐frequently cited musicians in op. & l.r. First, some notes about results: ‐ Research in 2006, so 6 years out of date ‐ Methodology somewhat problematic: • Chose artists names, at random, and used combined databases • couldn’t search certain artists b/c names too common Like Yes, The Who • list inherently arbitrary – he decided performers to search • some performers’ numbers inflated b/c of way judges cite them e.g., Paul Simon, should have been S & G 18 Nevertheless, he generated a top 10 list ‐ of rock musicians whose lyrics are most cited in judicial opinions & journals Notable absences: Elvis Presley, Johnny cash, Pink Floyd Billy Joel, Crosby, Stills & Nash, Neil Young, Eagles, James Taylor, Carole King, Leonard Cohen, Fleetwood Mac Dylan way on top Question: What Dylan lyric most‐often cited? Name lyric, song & album “You don’t need to be a weatherman to know which way the wind blows” “Subterranean Homesick Blues” (song) “Bringing It all back home” (album) 19 Dylan’s influence noted in May 9, 2011 article by Carol Williams in LA Times: “In Some Courts, Dylan rules” The weatherman quote used frequently – re: experts Often, when analyzing a Daubert challenge Question: Name performer/ group 2nd and 3rd on top of list Must provide both names for full credit Beatles, Bruce Springsteen Question: For reasons unclear to me, only 1 woman – who? Joni Mitchell Prof. Long says reliance on lyrics natural 20 ‐ Music covers spectrum of human situations He cites Johnny Cash’s liner notes to Unchained: I love songs about horses, railroads, land, judgment day, family, hard times, whiskey, courtship, marriage, adultery, separation, murder, war, prison, rambling, damnation, home, salvation, death, pride, humor, piety, rebellion, patriotism, larceny, determination, tragedy, rowdiness, heartbreak, and love. And Mother. And God. Most of our cases would fit in there somewhere Most lyrics cited are from classic rock – 60s & 70s Not surprising Many judges in 50s, 60s – so‐called baby boomers So, cite music issued from high school, college In 25 years, reading cases citing – Black Keyes, Broken bells, Shins, mumford & sons, white stripes, ray lamontagne, kings of leon & arcade fire Son (23) & daughter (21) keep me musically updated 21 But courts, even app. Cts., sometimes cite rock lyrics from non‐
mainstream groups: U.S. v Jackson, 390 F. 3d 393 (5th Cir. 2004) is example Criminal – bus passenger convicted of PWID coke after officers conducted canine sniff search on bus – led to arrest in station, found w coke strapped to waist D on bus when officer boarded & announced dog search & gave passengers option of remaining or leaving All pass., including D Jackson, left D challenged search after entering conditional plea 5th Cir. Rejected, wrote fn quoting – of all things ‐‐ The Clash: Fn 3: “Jackson was thus forced to ask himself what The Clash famously asked two decades ago: “Should I stay or should I go now?” See, the Clash, Combat Rock (1982)” (that was 5th cir) The Clash !!!! (hardly mainstream) 22 Time for another question: During this S Ct justice’s confirmation hearings, media reported that this nominee is a huge Springsteen fan. Name justice (Samuel Alito) [From 2006 W. Post article: “In his wife’s words”] Justice Alito’s wife, Martha, gave interview to newspaper before he was confirmed, while still a nominee In that interview, Ms. Alito also disclosed that he once attended a ska music festival Not sure of def, so looked it up: here is Am Her. Dict. Definition of ska: “pop. music originating in Jamaica in the late 1960s, having elements of rhythm and blues, jazz, and calypso & marked by a fast tempo and a strongly accented offbeat” In researching topic for today, came across “Hum a Few Bar Exam” article 23 Written by Prof. Eugene Volokh, at ucla law school Prof. drops wonderful footnote: “Oddly enough, Eugene Volokh has been allowed to teach law at UCLA Law School. For his baptism of humor, see Alex Kozinski & Eugene Volokh, Lawsuit, Shmawsuit, 103 Yale L. Journal 463 (1993) A.K., of course, is nationally known 9th Cir. Ct App. Judge In his “Hum a few bar exam” article, he creates essay questions based on song lyrics, which he slightly modifies. Does not cite group or song, but so popular that most readers wound instantly know musical reference For contracts: “You couldn’t get what you wanted, but you got what you needed instead. You sue for breach of warranty. What is the measure of damages?” For evidence: “Can my admitting that I shot the sheriff be used as prior bad act evidence in my trial for shooting the deputy? If I want to introduce my prior denial of shooting the deputy, will I be barred by the hearsay rule?” 24 For family law: “I’ve got a wife and kids in Baltimore, Jack – I went out for a ride and I never went back. How much alimony and child support do I owe? Am I within reach of the long‐arm statute?” For critical legal studies: “I am the egg man. I am the walrus. Deonstruct. Explain relevance to ruling‐class influences in farm subsidies and the law of the sea. Should it be, ‘I am the egg person? Goo goo goo joob?” When judges & courts cite rock lyrics, often use more than 1 per opinion: Yellow Cab Co of Sacramento v Yellow Cab of Elk Grove,Inc. 419 F. 3d 925 (9th Cir. 2005) Lanham act case re: the mark “yellow cab” In first few #s, ct. cites Joni Mitchell & Chuck Berry 25 U.S. v. Youts, 229 F.3d 1312 (10 Cir. 2000) D convicted 18 usc 1992 for wrecking a train (stat. re violence against railroad carriers or on‐track equip.) Multiple cites, starting with John Denver, “Choo Choo Ch’Boogie”” Another John Denver song, “Daddy, what’s a train?” Shifts to The Grateful Dead, “Tons of Steel” **************** At other times, cts string cite lyrics US v. Bullock, 454 F.3d 637 (7th Cir.): D in heroin dist. case received what app ct described as “a whopper of a sentence” – 1,200 months in federal prison (100 years) 26 D filed appeal of sentence, saying unreasonable 7th Cir. began opinion by noting that “100 years is a long time – one year longer, in fact, than the standard lyrical shorthand for an unimaginably long sentence,” which is 99 years. Ct. then dropped footnote (n. 1), citing lyrics about 99‐year jail terms in 7 separate songs by Springsteen, Bob Dylan, Johnny Cash, Ed Bruce, Bill Anderon, Chloe Bain, and Guy Mitchell Given that 7th Cir. Described sent. as a “whopper,” might not surprised to learn – Sentence vacated, case remanded for resentencing B/c this luncheon sponsored by FBA, many cases I’ve cited are federal But state courts, including state s. cts., regularly use rock lyrics Fick v. Brown, 254 P. 3d 593 (Montana S Ct. 2011) 27 Ct. wanted to demonstrate party pursued baseless claim Ct. concluded one party refused to accept basic legal rule It then quoted Springsteen, from his song, Worlds Apart, on the 2002‐released album, The Rising: “Sometimes the truth just ain’t enough/Or is too much in times like this” *********************************************** ABA Journal recently quoted C.J. Roberts’ views about law review articles. His specific comment, made at a judicial conference: “Pick up a copy of any law review that you see, and the first article is likely to be, you know, the influence of Emanuel Kant on evidentiary approaches in 18th Century Bulgaria, or something like that” With that thought in mind, here are titles of some l.r. articles I encountered during my research: “Bruce Springsteen & Staying on the Jersey Side: An Interview With Robert Coles on Human Connection & the Law,” 14 Widener L.J. 953 (2005) 28 “Strangers in Paradise: Weird Al and the Law of Musical Satire” 1 Fordham Enter. Media & Intell. Prop. L. Forum 11 (1990) “Law, Popular Culture, and Cultural Studies: The Music of Labor: From Movement to Culture” 11 Legal Studies Forum 211 (1999) “Much Respect: Toward a Hip‐Hop Theory of Punishment” 56 Stanford L.Rev. 983 (2004) “Outlaw Blues: Law in the Songs of Bob Dylan” 20 Cardozo L Rev. 1401 “Do You Want to Know a Trade Secret? How Article 2B Will Make Licensing Trade Secrets Easier (But Innovation More Difficult)” 87 Calif. L. Rev. 91 (1999) 29 “You Don’t Know What You Got Till It’s Gone: Competing Agendas of Preservationists” 11 Missouri Envt’l & Policy Review 209 (2004)” “Portrait of Criminals on Bruce Springsteen’s Nebraska: The Enigmatic Criminal, the Sympathetic Criminal, and the Criminal as Brother” 14 Widener L.J. 767 (2005) Truth is, have not read any of these l.r. articles Mention them only b/c titles struck me Speaking re striking, the clock is striking the witching hour Soon time for me to end remarks 30 B/c comments re: rock lyrics, makes sense to end with two: You may say I’m a dreamer, But I’m not the only one I hope someday you will join us And the world with live as one. ‐‐‐ John Lennon, Imagine (# 3 song, Rolling St. top 500 songs) Recall Judge Gold spoke on “mindfulness” at recent fba lunch Term comes from Eastern spiritual traditions & philosophies Includes notion of non‐judgmental Judge G urged us to be more understanding of opp. counsel With Judge G’s comments in mind, cite lyrics from song by one‐hit wonder band – Friend & Lover Song: “reach out of the darkness” (1967, verve forecast) 31 I knew a man that I did not care for And then one day this man gave me a call We sat & talked about things on our mind And now this man, he is a friend of mine TY for listening ***************************** 32