Thursday, May 4, 2017

"Best" Opening Lines of Judicial Opinions

The Incorporated Council of Law Reporting for England and Wales (@theILCR) publishes English law reports.  Last week, the ICLR published this article on the “best opening lines of published  judgments. Some are clever; some are sarcastic; some are funny because of the subject matter (I'm talking to you, hunny bunny judgment). 

I loved the article, and my Twitter friend, David Allen Green (@davidallengreen), challenged me to locate the best” opening lines in United States legal opinions. Many great opinions by great writers didn't make the list because the opening lines or paragraphs weren't particularly interesting or compelling. This was a tall task, but below are some of my favorites, in no particular order. 

Note: To use the parenthetical term coined by Jack Metzler of @SCOTUSplaces, I cleaned up the opinions for ease of reading.

Feel free to tweet me (@ladylegalwriter) or comment below and offer your favorite opening from a reported (or available on Westlaw/Lexis) United States case.

Concurring opinion by Justice Willett in Patel v. Texas Department. of Licensing and Regulation, 469 S.W.2d 69 (Tex. 2015)

Justice Don Willett
To understand the emotion which swelled my heart as I clasped this money, realizing that I had no master who could take it from me—that it was mine—that my hands were my own, and could earn more of the precious coin.... I was not only a freeman but a free-working man, and no master Hugh stood ready at the end of the week to seize my hard earnings.

Frederick Douglass's irrepressible joy at exercising his hard-won freedom captures just how fundamental—and transformative—economic liberty is. Self-ownership, the right to put your mind and body to productive enterprise, is not a mere luxury to be enjoyed at the sufferance of governmental grace, but is indispensable to human dignity and prosperity.

Texans are doubly blessed, living under two constitutions sharing a singular purpose: to secure individual freedom, the essential condition of human flourishing. In today's age of staggering civic illiteracy—when 35 percent of Americans cannot correctly name a single branch of government—it is unsurprising that people mistake majority rule as America's defining value. But our federal and state charters are not, contrary to popular belief, about “democracy”—a word that appears in neither document, nor in the Declaration of Independence. Our enlightened 18th- and 19th-century Founders, both federal and state, aimed higher, upended things, and brilliantly divided power to enshrine a promise (liberty), not merely a process (democracy).

One of our constitutions (federal) is short, the other (state) is long—like really long—but both underscore liberty's primacy right away….


Judge (now Justice) Gorsuch in United States v. Rentz, 777 F.3d 1105 (10th Cir. 2015)

Few statutes have proven as enigmatic as 18 U.S.C. § 924(c). Everyone knows that, generally speaking, the statute imposes heightened penalties on those who use guns to commit violent crimes or drug offenses. But the details are full of devils. Originally passed in 1968, today the statute says that “any person who, during and in relation to any crime of violence or drug trafficking crime ... uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime ... be sentenced to a term of imprisonment of not less than 5 years.” That bramble of prepositional phrases may excite the grammar teacher but it's certainly kept the federal courts busy. What does it mean to “use” a gun “during and in relation to” a drug trafficking offense? The question rattled around for years until Bailey v. United States and even now isn't fully resolved.


Brown v. State, 134 Ga. App. 771 (1975) (the entire opinion in written in rhyme)

The D. A. was ready
His case was red-hot.
Defendant was present,
His witness was not.

He prayed one day's delay
From His honor the judge.
But his plea was not granted
The Court would not budge.

So the jury was empaneled
All twelve good and true 
But without his main witness
What could the twelve do?

The jury went out
To consider his case
And then they returned
The defendant to face.

‘What verdict, Mr. Foreman?’
The learned judge inquired.
‘Guilty, your honor.’
On Brown's face-no smile....


Justice Roberts in dissent on denial of cert petition, Pennsylvania v. Dunlap, 555 U.S. 964 (2010) (I think of The Maltese Falcon every time I read this one.)

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.


35 Bar and Grille, LLC v. City of San Antonio, 943 F. Supp. 2d 706 (W.D. Tex. 2013)

THE CASE OF THE ITSY BITSY TEENY WEENY BIKINI TOP V. THE (MORE) ITSY BITSY TEENY WEENY PASTIE

ORDER CONCERNING PRELIMINARY INJUNCTION

An ordinance dealing with semi-nude dancers has once again fallen on the Court's lap. The City of San Antonio (“City”) wants exotic dancers employed by Plaintiffs to wear larger pieces of fabric to cover more of the female breast. Thus, the age old question before the Court, now with constitutional implications, is: Does size matter?


Judge Kozinski in Mattel, Inc. v. MCA Records, Inc., 296 F.3d 894 (9th Cir. 2002)

If this were a sci-fi melodrama, it might be called Speech-Zilla meets Trademark Kong.

Barbie was born in Germany in the 1950s as an adult collector's item. Over the years, Mattel transformed her from a doll that resembled a “German street walker,” as she originally appeared, into a glamorous, long-legged blonde. Barbie has been labeled both the ideal American woman and a bimbo. She has survived attacks both psychic (from feminists critical of her fictitious figure) and physical (more than 500 professional makeovers). She remains a symbol of American girlhood, a public figure who graces the aisles of toy stores throughout the country and beyond. With Barbie, Mattel created not just a toy but a cultural icon.

With fame often comes unwanted attention. Aqua is a Danish band that has, as yet, only dreamed of attaining Barbie-like status. In 1997, Aqua produced the song Barbie Girl on the album Aquarium. In the song, one bandmember impersonates Barbie, singing in a high-pitched, doll-like voice; another bandmember, calling himself Ken, entices Barbie to go party. (The lyrics are in the Appendix.) Barbie Girl singles sold well and, to Mattel's dismay, the song made it onto Top 40 music charts.


Schatz v. Republican State Leadership Committee, 669 F.3d 50 (1st Cir. 2012)

Campaigning for public office sometimes has the feel of a contact sport, with candidates, political organizations, and others trading rhetorical jabs and sound-bite attacks in hopes of landing a knockout blow at the polls. It is not for the thin-skinned or the faint-hearted, to use two apropos clichés.  And because political speech is the life-breath of democracy, the First Amendment—applied to the states via the Fourteenth—bars public figures from recovering damages under state defamation laws unless they show that the defamer acted with “actual malice,” legalese that might suggest ill will or evil motive to the uninitiated but really means knowledge of falsity or reckless disregard for the truth.


Judge Posner concurring in Hively v. Ivy Tech Community College of Indiana, 853 F.3d 339 (7th Cir. 2017)

I agree that we should reverse, and I join the majority opinion, but I wish to explore an alternative approach that may be more straightforward.

It is helpful to note at the outset that the interpretation of statutes comes in three flavors. The first and most conventional is the extraction of the original meaning of the statute—the meaning intended by the legislators—and corresponds to interpretation in ordinary discourse. Knowing English I can usually determine swiftly and straightforwardly the meaning of a statement, oral or written, made to me in English (not always, because the statement may be garbled, grammatically intricate or inaccurate, obtuse, or complex beyond my ability to understand).

Sir William Blackstone
The second form of interpretation, illustrated by the commonplace local ordinance which commands “no vehicles in the park,” is interpretation by unexpressed intent, whereby we understand that although an ambulance is a vehicle, the ordinance was not intended to include ambulances among the “vehicles” forbidden to enter the park. This mode of interpretation received its definitive statement in Blackstone’s analysis of the medieval law of Bologna which stated that “whoever drew blood in the streets should be punished with the utmost severity.” Blackstone asked whether the law should have been interpreted to make punishable a surgeon “who opened the vein of a person that fell down in the street with a fit.” (Bleeding a sick or injured person was a common form of medical treatment in those days.) Blackstone thought not, remarking that as to “the effects and consequence, or the spirit and reason of the law ... the rule is, where words bear either none, or a very absurd signification, if literally understood, we must a little deviate from the received sense of them.” The law didn’t mention surgeons, but Blackstone thought it obvious that the legislators, who must have known something about the medical activities of surgeons, had not intended the law to apply to them. And so it is with ambulances in parks that prohibit vehicles.

Finally and most controversially, interpretation can mean giving a fresh meaning to a statement (which can be a statement found in a constitutional or statutory text)—a meaning that infuses the statement with vitality and significance today. An example of this last form of interpretation—the form that in my mind is most clearly applicable to the present case—is the Sherman Antitrust Act, enacted in 1890, long before there was a sophisticated understanding of the economics of monopoly and competition. Times have changed; and for more than thirty years the Act has been interpreted in conformity to the modern, not the nineteenth- century, understanding of the relevant economics. The Act has thus been updated by, or in the name of, judicial interpretation—the form of interpretation that consists of making old law satisfy modern needs and understandings. And a common form of interpretation it is, despite its flouting “original meaning.” Statutes and constitutional provisions frequently are interpreted on the basis of present need and present understanding rather than original meaning—constitutional provisions even more frequently, because most of them are older than most statutes.


Green v. Board of County Commissioners of County of Haskell, 450 F. Supp. 2d 1273 (E.D. Okla. 2006) (reversed)

Located in Southeastern Oklahoma, Haskell County has a population of about 15,000 people. The seat of county government is in Stigler, which is home to approximately 2,500 souls. Everyone knows each other.
Haskell County, Oklahoma

Highway 9 is one of the major state highways in Haskell County. It becomes Main Street as it runs through Stigler and passes directly in front of the Haskell County courthouse. It is the busiest street in Stigler.

The courthouse sits in the middle of approximately one square block of county property. Parking lots exist on both sides and in back of the courthouse. No parking exists at the front of the property except a few parallel parking spaces on Highway 9 itself. Most people who come to the courthouse to conduct business park in the side or rear parking lots.

The setting of the courthouse grounds is somewhat bucolic. Squirrels run across the grass, tall trees shade the lawn and neat sidewalks criss-cross it to converge at the front and side entrances. A small, rustic log cabin housing the Haskell County Historical Society is on the northeast side of the property. A picturesque gazebo, suitable for anything from political rallies to orchestral performances, stands on the northwest corner. Indeed, a number of public and private events take place on the courthouse lawn and at the gazebo.

The courthouse itself is not, from all appearances, an architectural marvel. To the court's untrained eye, its style could be described as “muscular brick and concrete with turquoise trim.” A cheerful looking building it is not; however, no question has been raised regarding its functionality.

Spread willy-nilly over the front lawn of the courthouse is a mélange of marble monuments of various styles, sentiments and construction. Private citizens paid for and erected most of the monuments. The largest monument sits smack dab in the center of the lawn. It lists and honors Haskell County citizens who died in World Wars I and II. In front of it are smaller monuments for KIAs in Vietnam and Korea. Behind the war memorial is a small rose garden with a birdbath. Nearby, straight and tall, stands a flagpole from which Old Glory proudly waves.

A large marble monument honoring the Choctaw Nation also stands on the front lawn. No other Indian tribe is represented by a monument on the courthouse lawn in Haskell County. Near the gazebo, a large marble monolith honoring all unmarked graves in Haskell County looks out majestically over Main Street.

Not last, and certainly not least, the courthouse lawn holds two sturdy marble benches dedicated to and inscribed respectively by the Class of 1954 and the Class of 1955. The names of members of the graduating class are inscribed in (mostly) alphabetical order on the tops of the benches. The court is unsure why no other class demonstrated the wherewithal or initiative to erect a monument to themselves, or why the County perhaps approves of no other high school graduating class.


Anderson v. Terhune, 516 F.3d 781 (9th Cir. 2008)

It is likely that few Americans can profess fluency in the Bill of Rights, but the Fifth Amendment is surely an exception. From television shows like “Law & Order” to movies such as “Guys and Dolls,” we are steeped in the culture that knows a person in custody has “the right to remain silent.” Miranda is practically a household word. And surely, when a criminal defendant says, “I plead the Fifth,” it doesn't take a trained linguist, a Ph.D, or a lawyer to know what he means. Indeed, as early as 1955, the Supreme Court recognized that in popular parlance and even in legal literature, the term  “Fifth Amendment in the context of our time is commonly regarded as being synonymous with the privilege against self-incrimination.


Denny v. Radar Industries, Inc. 184 N.W.2d 289 (Mich. Ct. App. 1971) (the entire opinion). 

The appellant has attempted to distinguish the factual situation in this case from that in Renfroe v. Higgins Rack Coating and Manufacturing Co., Inc. He didn't. We couldn't.

Affirmed. Costs to appellee.

Thursday, March 2, 2017

Contrasting Introductions in Kolbe v. Hogan

The Fourth Circuit Court of Appeals recently held that Maryland’s Firearm Safety Act (FSA), which bans AR-15s, other military-style rifles, and certain large-capacity magazines, is constitutional and does not violate the Second or Fourteenth Amendments.

This decision is controversial for a number of reasons (aren’t all cases involving guns?), but the introductions in the majority and dissenting opinions are particularly interesting. You’d expect an opinion about the constitutionality of a firearm-related statute to start with an exposition of Second Amendment law or a discussion of the specific language of the statute itself.

Not this majority opinion. It starts with a literal bang:

AR-15
On the morning of December 14, 2012, in Newtown, Connecticut, a gunman used an AR-15-type Bushmaster rifle and detachable thirty-round magazines to murder twenty first-graders and six adults in the Sandy Hook Elementary School. 

Two additional adults were injured by gunfire, and just twelve children in the two targeted classrooms were not shot. Nine terrified children ran from one of the classrooms when the gunman paused to reload, while two youngsters successfully hid in a restroom. Another child was the other classroom's sole survivor. In all, the gunman fired at least 155 rounds of ammunition within five minutes, shooting each of his victims multiple times.

Both before and after Newtown, similar military-style rifles and detachable magazines have been used to perpetrate mass shootings in places whose names have become synonymous with the slaughters that occurred there — like Aurora, Colorado (twelve killed and at least fifty-eight wounded in July 2012 in a movie theater), and San Bernardino, California (fourteen killed and more than twenty wounded in December 2015 at a holiday party). 

In the early morning hours of June 12, 2016, a gunman killed forty-nine and injured fifty-three at the Pulse nightclub in Orlando, Florida, making it the site of this country's deadliest mass shooting yet. According to news reports, the Orlando gunman used a Sig Sauer MCX, a semiautomatic rifle that was developed at the request of our Army's special forces and is known in some military circles as the "Black Mamba." 

Other massacres have been carried out with handguns equipped with magazines holding more than ten rounds, including those at Virginia Tech (thirty-two killed and at least seventeen wounded in April 2007) and Fort Hood, Texas (thirteen killed and more than thirty wounded in November 2009), as well as in Binghamton, New York (thirteen killed and four wounded in April 2009 at an immigration center), and Tucson, Arizona (six killed and thirteen wounded in January 2011 at a congresswoman's constituent meeting in a grocery store parking lot).  

In response to Newtown and other mass shootings, the duly elected members of the General Assembly of Maryland saw fit to enact the State's Firearm Safety Act of 2013....

Why does Judge King introduce the case with these facts? Because they speak to the legislature’s intent in enacting the FSA. But also because they are a striking reminder of the specific harms the legislature was attempting to address. Judge King could have provided much less detail (“In response to several mass shootings across the country, the General Assembly saw fit to enact . . . .”) but by including details about these specific mass shootings, his majority opinion reflects what I’ll call the “anti-automatic rifle position” of many liberals; that is, the belief that the right to own automatic and semiautomatic rifles is not protected by the Second Amendment and that automatic and semiautomatic rifles enable those inclined to violence to inflict more harm than would be possible without those rifles.

Notice too that Judge King doesn’t provide the shooters names, only the types of weapons used and the carnage inflicted. This is intentional—he wants the reader to focus on the firearms and the acts themselves, not the perpetrator.

Lewis F. Powell, Jr. Courthouse
Fourth Circuit Court of Appeals
Contrast that introduction with the dissent’s introduction, which reflects what I’ll call the “pro-gun position” of many conservatives; that is, the belief that the Second Amendment protects the rights of citizens to bear arms of their choosing and that the harms inflicted by mass shootings are attributable to the people who perpetrate them, not the firearms used. Judge Traxler, writing for the dissent, begins:

Today the majority holds that the Government can take semiautomatic rifles away from law-abiding American citizens. In South Carolina, North Carolina, Virginia, West Virginia and Maryland, the Government can now tell you that you cannot hunt with these rifles. The Government can tell you that you cannot shoot at targets with them. And, most importantly, the Government can tell you that you cannot use them to defend yourself and your family in your home. In concluding that the Second Amendment does not even apply, the majority has gone to greater lengths than any other court to eviscerate the constitutionally guaranteed right to keep and bear arms.

If you look carefully at this introduction, you’ll notice that the word “Government” (with a capital G) appears four times in the first three sentences. This, too, is intentional and reflects the federalist position that small government is preferable and government should stay out of citizens' lives to the extent possible. Conservatives generally fear government intrusion into many parts of their lives (healthcare, religion, etc.), and the repetition of the capital-G Government highlights the dissenting judges’ belief that the majority opinion represents further unacceptable intrusion.

Judge Traxler also highlights legal activities that citizens might engage in with these weapons, rather than the illegal activities that spawned the FSA, which the majority highlights. And consider his use of the term “eviscerate,” which has a much stronger connotation that a similar term, “destroy.”

Regardless of your thoughts on the correctness of the decision, the introductions in both the majority and dissenting opinions reflect the tone, tenor, and positions of the (highly divided) left and right.  

You can find the complete opinion here.

Sunday, February 5, 2017

I Spy a Spy's Guide

Even though the Style Manual and Writer’s Guide for Intelligence
Publications was de-classified in 2012, I just came across this concise writing manual used by the nation's intelligence agents. The Guide has some great intel for writers, and its general tips include:
  • Keep the language crisp and pungent; prefer the forthright to the pompous and ornate
  • Use abbreviations sparingly
  • Be frugal in the use of adjectives and adverbs; let nouns and verbs show their own power
  • Be aware of your reading audience; reserve technical language for technical readers

Helpful sections detail capitalization and other rules for:
  • Government entities
  • Geographic terms
  • Numbers (mixed-numbers, expressions of value, percentages and time phrases)
  • Latin abbreviations

Most of the Guide’s rules are consistent with those recommended for legal writers. For example, the Guide endorses the use of an apostrophe and an s to indicate possession where a word ends in an s sound (e.g., Texas’s argument).

My favorite part of the Guide, though, is the Word Watchers List of “possibly troublesome words” and how to deal with them. What terms should be under surveillance according to the intelligence community? Words such as:
  • Altogether, all together: Altogether means all told or completely. All together means in unison
  • Assure, ensure, insure: Assure applies to persons (to assure a leader of one’s loyalty). It alone has the sense of setting a person’s mind at rest. Use ensure to mean make certain (to ensure a nation’s security). Insure means to cover with insurance.
  • More than, fewer than, over, under, during, while: Over and under describe location; use more than and fewer than with numbers. For time, use during, from, or while except when the time reference is indefinite or vague. The system has improved during the past year. Inflation is up 10 percent from a year ago. But: Relations between the two nations have improved over time. Living conditions have changed over the centuries.

I love the Word Watchers entry on “verbal overkill” and the suggested substitutes:

Extra words are burdensome to the reader and should be avoided. Here are some samples of  verbal overkill and a simple substitute for each:

    are in a position to (can)           
    it is highly likely that (probably)
    at that point in time (then)                    
    it is possible that (may)
    at the present time (now)                     
    never before in the past (never)
    currently in progress (going on)          
    subsequent to (after)
    due to the fact that (because)              
    the majority of (most)
    in regard to (about)                              
    the manner in which (how)
    in the event that (if)                             
    whether or not (whether)
    in the near future (soon)

The Guide also includes a helpful list for spelling and compound words (antiestablishment but anti-American).

The most pressing question: What does the Guide say about Oxford commas?

Oxford commas are "the rule for CIA publications."

Luckily, the Guide is now available for us non-agents and won’t self-destruct! Uncover it for yourself here.

Friday, January 13, 2017

A Deplorable(s) Brief

After a long blogging hiatus, I’m back with a review* of an amicus brief filed in Lee v. Tam, currently pending before the Supreme Court.  

A brief background of the case:  The Lanham Act, which governs federal trademarks, prohibits registration of any mark that  “may disparage . . . persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt or disrepute.” 15 U.S.C. 1052(a).

Simon Shiao Tam and his bandmates were denied a federal trademark registration for their band, The Slants. The United States Patent and Trademark Office’s denial of the registration application was based on its finding that The Slants’ name is disparaging to Asian-Americans. The Federal Circuit Court of Appeals held that the PTO’s refusal to register disparaging marks, including The Slants, is unconstitutional viewpoint discrimination. The Supreme Court granted cert, and the case will be argued on January 18, 2017.

The Slants
Photo by Gage Skidmore

The Cato Institute filed an amicus brief on behalf of a group that describe themselves as a “basket of deplorable people and organizations.” This entertaining description makes sense in light of the amici’s interest in the case:

Amici are committed to preserving free expression and pushing people out of their comfort zones. This case concerns amici because we all say things that some people find offensive or even disparaging—but it’s not the government’s role to make that judgment.

The deplorables brief, authored by Ilya Shapiro and Thomas Berry, reads like an op-ed. The authors’ conversational style (in the vein of Justice Kagan?) makes the brief eminently readable. Below I highlight a few of the (many) parts of this brief that I like and find interesting and effective.**  

The Question Presented

I love the straightforwardness and simplicity of the Question Presented:

Does the government get to decide what’s a slur?

While parties can’t get away with a one-sentence QP that fails to provide the relevant law, amici can. Compare the amici’s QP with Tam’s, which is straightforward as well (though a little more detailed):

The disparagement clause in section 2(a) of the Lanham Act, 15 U.S.C. § 1052(a), prohibits the registration of a trademark that “may disparage ... persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.”

The Questions Presented are:

1. Whether the disparagement clause bars the registration of respondent’s trademark.

2. Whether the disparagement clause is contrary to the First Amendment.

3. Whether the disparagement clause is unconstitutionally vague under the First and Fifth Amendments.

Authorities Cited

The deplorables’ eclectic list of authorities includes (in no particular order):

Plessy v. Ferguson, 408 U.S. 593 (1972)
Wikipedia
Seinfeld, The Yada Yada
Dred Scott v. Sandford, 60 U.S. 393 (1856)
Chris Rock, Rock This
Merriam-Webster’s Dictionary
Barack Obama Speech on Father’s Day, June 15, 2008
Jim Goad, The Redneck Manifesto (1997)
South Park, With Apologies to Jesse Jackson
About.com
N.W.A., Straight Outta Compton
Elizabeth Wurtzel, Bitch: In Praise of Difficult Women (1998)

The deplorables don’t feel constrained by traditional legal sources; certainly they cite relevant case law, but considering the breadth and distinctiveness of some authorities cited, we see the authors’ point that the disparagement clause’s prohibition affects Americans of many different races, genders, and heritages.

Images

The use of images in briefs is currently in vogue (to the extent that anything in law can be considered in vogue), and the authors of the deplorables brief don’t disappoint, using an image of Flying Dog Brewery’s Raging Bitch Belgian-Style IPA to demonstrate the long history of legal disputes over “edgy” brand names.

Contractions

Those interested in legal writing continue to debate the use of contractions in motions and briefs. Some, like me, eschew them, while others believe they’re acceptable when used sparingly and purposefully. The drafters of the depolorables brief are in the latter group; the brief is full of contractions, many of which make the writing pop:

The PTO has inserted itself into a cultural debate. It’s no secret that for centuries, people have used language to ridicule and debase.

From its very beginnings, rock music has made parents uncomfortable, school teachers cringe, and officials riled up. It wouldn’t be rock music if it didn’t.

Rather than promoting an offense-free marketplace, the goal of the trademark system is quite simple: for people to know what they’re buying.

Short openings

Brief writers sometimes use lengthy introductory phrases that detract from rather than support their arguments. Shapiro and Berry chose short openings to help them get to their points quickly:

But the suppression of political speech is not the only problem arising from the disparagement clause.

Of course many in the African-American community continue to disagree with comedians’ decision to use racial epithets.

And as the Federal Circuit pointed out, “the PTO [has] admitted that ‘[t]he guidelines for determining whether a mark is scandalous or disparaging are somewhat vague and the determination of whether a mark is scandalous or disparaging is necessarily a highly subjective one.’”

Once again, the PTO would have us believe that although linguists, historians, and pundits disagree, everyone who works at 600 Dulany Street in Alexandria magically acquires the power to settle these debates.

Some cool, little-used words

Generally, a brief isn’t the place to show off a large vocabulary. In my opinion, the use of too many $10 words smacks of grandiloquence. But a few carefully placed gems, like these in the deplorables brief, can spice up prose:

The Slants have chosen a name that, through its insouciance, expresses something about their music—and the government’s jejune label of “disparaging” fails to capture the many levels of communication inherent in that name.

For several reasons, we are less sanguine that such a neutral and objective arbiter of true disparagement can be found anywhere, let alone in the federal government.

Short, punchy sentences

Short sentences provide a nice contrast to longer, dense ones. The authors use short sentences sparingly but effectively:

It gets complicated. And that’s the point. The disparagement clause places an unconstitutional condition on those who consider the use of an edgy or taboo phrase to be part of their brand.

Perhaps the NAACP is right that the term colored is “outdated and antiquated but not offensive.” But this raises the question: At what point between 1910 and the present would the PTO have ceased granting registration to marks using “colored”? Once again, there is no clear answer.

Interesting asides

These asides would be too cutesy for the parties’ briefs, but they work in the folksy deplorables brief.  

Indeed, under the government’s own proposed rule, any service that Congress or a local legislature is “not obligated to provide”—which is literally the case for every service19—could be selectively withheld on the basis of speech.

19 Actual, non-Biden sense of the word “literally.” See, e.g., Alexandra Petri, Literally, Joe Biden, Wash. Post, Sept. 7, 2012, http://wapo.st/2hpA521

In the 1970s, both Stanford and Dartmouth voluntarily changed their mascots from the “Indians” to the (difficult-to-make-into-a-costume) incorporeal colors “Cardinal” and “Big Green,” respectively.

Amici, and all others who sometimes find themselves lumped into a basket of deplorables—now that’s a great band name!—urge the Court to let people judge for themselves what’s derogatory.

Interested in reading the deplorables brief for yourself? You can find it here.

You can find Tam's brief (cited above) here and the other briefs and coverage of the case over at SCOTUSblog. 

Note: Overlawyered’s Water Olsen describes the deplorables brief as perhaps the “most not-safe-for-work amicus brief in Supreme Court history.” The brief is full of obscene language, so view at your own risk!

* Occasionally I “review” briefs from high-profile cases, but I use the term “review” loosely. I rarely highlight areas of potential improvement (to the extent there are any), instead focusing on the parts of briefs that I find effective.   

**And while we’re talking disparagement, I refer to this brief as the “deplorables brief” throughout the post. I don’t think the amici care about my opinion or would be offended anyway, but just so we’re clear, this description isn’t meant to suggest that I find the amici deplorable.