by Justice Bill Boyce, Fourteenth Court of Appeals
So here you are, Chief Justice of the United States Supreme Court and all, looking for a way to dissent memorably in a case not unlike many the Court decides. That is to say, a case addressing a technical legal issue that is both (A) important, and (B) unsurpassingly dull unless you happen to make a living by litigating technicalities of this nature.
How technical? How dull? Try this on for size: Do the assignees of 1,400 payphone operators suing long-distance carriers under the Communications Act seeking to recover FCC-mandated dial-around compensation for coinless payphone calls have Article III standing, even when these assignees have promised to remit the proceeds of the litigation to the assignors?
In case you’re wondering, Justice Breyer and four other justices concluded that the answer to this question is “yes.” Sprint Commc’ns Co., L.P. v. APCC Servs., Inc., 554 U.S. 269, 285 (2008). “Lawsuits by assignees, including assignees for collection only, are ‘cases and controversies of the sort traditionally amenable to, and resolved by, the judicial process.’” Id. (quoting Vermont Agency of Natural Res. v. United States ex rel. Stevens, 529 U.S. 765, 777–78 (2000)).
The merits of Chief Justice Roberts’s dissent in Sprint Communications are less important for present purposes than the technique he uses to make his point in a case that easily could induce REM sleep.
His technique, in two words: Song lyrics.
Said the Chief Justice: “The absence of any right to the substantive recovery means that respondents cannot benefit from the judgment they seek and thus lack Article III standing. ‘When you got nothing, you got nothing to lose.’ Bob Dylan, Like a Rolling Stone, on Highway 61 Revisited (Columbia Records 1965).” Id. at 301 (Roberts, C.J., dissenting).
This technique may be novel in the United States Supreme Court, but it is old hat in the Texas Supreme Court. Especially, for some reason, in dissents in mandamus cases. See In re McAllen Med. Ctr., 275 S.W.3d 458, 470 (Tex. 2008) (orig. proceeding) (Wainwright, J., dissenting) (quoting A Whole New World by Brad Kane); In re Allstate County Mut. Ins. Co., 85 S.W.3d 193, 200 (Tex. 2002) (orig. proceeding) (Baker, J., dissenting) (quoting Yesterday by John Lennon and Paul McCartney); Walker v. Packer, 827 S.W.2d 833, 846 (Tex. 1992) (orig. proceeding) (Doggett, J., dissenting) (quoting God Bless the Child by Arthur Herzog, Jr. and Billie Holliday).
I myself have never worked up the nerve to include a song lyric in an opinion. Or, during my time practicing law, in a brief. This reluctance has less to do with any philosophical position on the use of song lyrics in legal writing, and more to do with concerns about my own dexterity in attempting to weave pop culture references into otherwise solemn legal analysis.
Handled skillfully, song lyrics can have a powerful effect in opinion writing. Handled clumsily, lyrics can create an unnecessary distraction. Sort of like an impulsively chosen tattoo in a prominent location.
My concern is underscored by the ephemeral nature of some briefly popular songs. Lyrics from Dylan, Lennon, McCartney and Disney movies probably are pretty safe bets in terms of shelf life. Other choices run a high risk of going stale. Like the songs of my youth, for instance. Mercifully, much of the music I listened to in the late 1970s and early 1980s no longer gets significant airtime beyond specialty stations on Sirius. (Until, of course, it is recycled on Glee, which ensures that my youngest daughter will play it on the laptop until I break out in hives.)
Then too there is the prospect of unnecessary arguments about the accuracy of quotations from lyrics. Even Chief Justice Roberts’s selection from Dylan is not beyond question; according to some websites, the correct lyric is this: “When you ain’t got nothin’, you got nothin’ to lose.” Motions for rehearing are plentiful enough without getting into a Google-fueled dispute about the most accurate rendition of a lyric.
I am unlikely to incorporate song lyrics into my opinions any time soon. But for opinion drafters and brief writers who are so inclined, I salute your efforts in the words of philosopher and legal scholar Robert Hunter: “Keep truckin’ like the doodah man.”
Have your own rewrite suggestion that would rock you like a hurricane? Send it to: submissions@hbaappellatelawyer.org