15 March 2007

Law and Laureates

by Matt Rubinstein at 9:24 am

judge.jpgJust like those chumps who win the lottery and keep going to work every day, even after I published my novel in verse about Adelaide I still finished my law degree and then practised for five years. I still do a bit of contracting and consulting, for the sole purpose of keeping it real. And of course I’m interested in the occasional intersections of law and literature.

I was particularly pleased to see that the House of Representatives in Minnesota has tabled a bill appointing a poet laureate. Governor Tim Pawlenty vetoed a similar bill in 2005 on the basis that the North Star State already had a “state folklorist” and he was worried about the inevitable “requests for a state mime, interpretive dancer or potter”. (The Land of 10,000 Lakes is also burdened with a state mushroom (the morel, Morchella esculenta) and a state muffin (blueberry) as well as a couple more nicknames not already mentioned, including the Bread and Butter State and the Gopher State.) But perhaps the pottery-hating Governor will change his mind when he sees that this bill is written in verse. It’s too awful to extract in full, but at least it admits it:

Subd. 2. Removal.

The poet will be free to write rhyming lines,
With removal only for cause,
But we trust that the bard will promptly resign,
If the verse reads as badly as laws.

Legislation is hardly ever written in verse, but there are quite a few examples in case law. You might remember a couple of years ago when Macomb County (Michigan) Circuit Court Judge Deborah Servitto dismissed a defamation suit against Eminem with a little rap of her own. This one stands up a bit better (citation is DeAngelo Bailey vs Marshall Bruce Mathers, III aka Eminem Slim Shady, Case No. 2001-3606-NO):

Mr Bailey complains that his rep is trash
So he’s seeking compensation in the form of cash
Bailey thinks he’s entitled to some monetary gain
Because Eminem used his name in vain

Eminem says Bailey used to throw him around
Beat him up in the john, shoved his face in the ground
Eminem contends that his rap is protected
By the rights guaranteed by the first amendment

Eminem maintains that the story is true
And that Bailey beat him black and blue
In the alternative he states that the story is phony
And a reasonable person would think it’s baloney

The Court must always balance the rights
Of a defendant and one placed in a false light
If the plaintiff presents no question of fact
To dismiss is the only acceptable act

If the language used is anything but pleasin’
It must be highly objectionable to a person of reason
Even if objectionable and causing offence
Self-help is the first line of defence

Yet when Bailey actually spoke to the press
what do you think he didn’t address?
Those false light charges that so disturbed
Prompted from Bailey not a single word

So highly objectionable, it could not be
—Bailey was happy to hear his name on a CD

Bailey also admitted he was a bully in youth
Which makes what Marshall said substantial truth
This doctrine is a defence well known
And renders Bailey’s case substantially blown

The lyrics are stories no one would take as fact
They’re an exaggeration of a childish act
Any reasonable person could clearly see
That the lyrics could only be hyperbole

It is therefore this Court’s ultimate position
That Eminem is entitled to summary disposition.

Well, it starts out all right. But it’s not a patch on the 1983 Michigan Court of Appeals case of William L Fisher v Karen Lowe et al (122 Mich App 418) which reads, somewhat delightfully:

We thought that we would never see
A suit to compensate a tree.

A suit whose claim in tort is prest
Upon a mangled tree’s behest;

A tree whose battered trunk was prest
Against a Chevy’s crumpled crest;

A tree that faces each new day
With bark and limb in disarray;

A tree that may forever bear
A lasting need for tender care.

Flora lovers though we three,
We must uphold the court’s decree.

That is the full judgment (minus a couple of footnotes that contain the actual prosaic decision) but it was later embellished, apparently by headnote writers at Westlaw, with an opening synopsis which is also pretty good. Then there’s the pretty workmanlike version of “The Raven” found in In re Robin E. Love, Bankruptcy No. 85-03011-BKC-AJC. There’s the Dr-Seuss–like Brown v State 134 Ga App 771, and… ah, hell, there’s a big list of them here, although all the links are to the pay-per-view Westlaw.

The Hon. Gerald Lebovitz writes in Ethical Judicial Opinion Writing (big PDF here):

Judges should not construct opinions in the form of poems. Although “[p]oetic justice is always entertaining,” it is “rarely poetic or just.” Poetic opinions undermine the key aspect that is central to judicial opinions—they lack “a clearly articulated holding supported by precedent.” Litigants, especially the losing side, may feel as though the court treated their issues and arguments frivolously.262 And the public will conclude that the court spent more time constructing the verses than contemplating the law. As Justice Oliver Wendell Holmes observed, “The law is not the place for the artist or poet. The law is the calling of thinkers.” Judges should spend more time contemplating the law than creating verses.

This seems like a bit of a downer, but given how terrible most of the judicial verses are I don’t think anybody’s going to fight too hard for them. Mary Kate Kearney makes a spirited argument based on Porreco v Porreco 811 A.2d 566, which turns out to be quite poetic, though it’s only a dissent:

A groom must expect matrimonial pandemonium
when his spouse finds he’s given her a cubic zirconium
instead of a diamond in her engagement band,
the one he said was worth twenty-one grand.

Our deceiver would claim that when his bride relied
on his claim of value, she was not justified
for she should have appraised it; and surely she could have,
but the question is whether a bride-to-be would have.

The realities of the parties control the equation,
and here they’re not comparable in sophistication;
the reasonableness of her reliance we just cannot gauge
with a yardstick of equal experience and age.

This must be remembered when applying the test
by which the “reasonable fiancée” is assessed.
She was 19, he was nearly 30 years older;
was it unreasonable for her to believe what he told her?

Given their history and Pygmalion relation,
I find her reliance was with justification.
Given his accomplishment and given her youth,
was it unjustifiable for her to think he told the truth?

Or for every prenuptial, is it now a must
that you treat your betrothed with presumptive mistrust?
Do we mean reliance on your beloved’s representation
is not justifiable, absent third party verification?

Love, not suspicion, is the underlying foundation
of parties entering the marital relation;
mistrust is not required, and should not be made a priority.
Accordingly, I must depart from the reasoning of the majority.

Way to go, the Hon. J Michael Eakin!

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