Colorful Judicial Language

[wserra]

I'm not sure why I didn't start a thread like this some time ago. Perhaps it is because the point of judicial writing is not to create opinions filled with bons mots - and, God knows, it usually does not do so. Indeed, the very existence of frequent flowery language in a jurist's oeuvre could lead the reader to believe that the author canted the law to benefit the words, rather than vice versa.

In any event, Judge Irving Kaufman had his controversial moments during his 40+ years on the federal bench, first as a DJ in Manhattan and then on the Second Circuit. His acts and comments during the Rosenberg trial - especially those concerning the death sentence he imposed - may have cost him a Supreme Court nomination. The Second Circuit reversed the convictions in the Apalachin meeting trial, over which Kaufman presided. But the man could write:

We have had occasion to note the striking resemblance between some of the laws we are called upon to interpret and King Minos's labyrinth in ancient Crete. The Tax Laws and the Immigration and Nationality Acts are examples we have cited of Congress's ingenuity in passing statutes certain to accelerate the aging process of judges. In this instance, Congress, pursuant to its virtually unfettered power to exclude or deport natives of other countries, and apparently confident of the aphorism that human skill, properly applied, can resolve any enigma that human inventiveness can create, has enacted a baffling skein of provisions for the I.N.S. and courts to disentangle. . . Emboldened by Thesean courage and fortified by a close examination of the statutory language, we believe that the Board of Immigration appeals erred in denying the petitioner relief on the ground that it did, and remand for consideration on a proper basis.

Lok v. INS, 548 F.2d 37 (2d Cir. 1977).

[BBFlatt]

I've always liked this one:

We must today answer the riddle at once adumbrated and apparently foreclosed by the false dichotomy created by the United States Supreme Court in Malat v. Riddell, 383 U.S. 569, 572, 86 S.Ct. 1030, 1032, 16 L.Ed.2d 102 (1966) (per curiam): when profits have "aris[en] from the [ordinary] operation of a business" on the one hand and are also "the realization of appreciation in value over a substantial period of time" on the other, are these profits treated as ordinary income or capital gain? Lacking any clear guidance but the language of the capital asset statute itself, we turn to that language for the answer. Before we can arrive at this interesting and important question, however, we must once again tramp along (but not trample on) that time — and precedent — worn path which separates capital gains from ordinary income. By the time we emerge into the light at the far edge of the forest, we will find that the Riddell riddle has seemingly answered itself, and all that will remain will be a brief reassessment of our answer. In our peregrinations, we of necessity wander into virgin territory. We hope that we shed new light onto this murky terrain; at the least, we think we have neither riddled the cases nor muddled the issues.

Suburban Realty v U.S. 615 F.2d 171 (5th Cir. 1980)

[Judge Roy Bean]

LOL - should be required reading in civics classes!

[Pottapaug1938]

Lason v. State, 12 So. 2d 305, 152 Fla. 440 (1943) has to hold the record for the funniest paragraph ever to appear in an appellate decision.

[wserra]

Lason v. State

Beat me to it, Pottapaug. But aren't you going to quote it?

[Pottapaug1938]

OK, Wes. Here it is:

The controlling factor to be determined is presented by appellant's first question posed in the following language:

1. "Does the one specific crime definitely defined and limited by Section 7567 C.G.L. — 1927; 3534 C. S. (1906) *Page 442 5424 R.G.S. — 1920; c. 1637, Sub. c. 8, Acts 1868, Sec. 17, comprehend or include the action of a 76 year old, aged Indian War Veteran, feeble physically and mentally, in, after having met the two girls of 11 and 13 years of age who solicited him, went to his residence and there they both get on the bed, pull up their dresses and drop down their panties, when he in turn on his back in the same bed allowed them to diddle with his rag-like penis, unerectable, lifeless and useless except to connect the bladder with the outside world for more than six years since the death of his wife, utterly incapable of either penetration or emission, and wad it like a rag into their mouths, and then, in his feeble and aged condition impelled by the irresistable impulse, in turn he would kiss and put his tongue in, their little, though potentially influential and powerful, vaginas?"

It appears to us that we have determined this question contrary to appellant's contention.

[wserra]

Bankruptcy practitioners (RIP Prof) enjoy:

Once upon a midnight dreary, while I pondered weak and weary
Over many quaint and curious files of chapter seven lore
While I nodded nearly napping, suddenly there came a tapping
As of some one gently rapping, rapping at my chamber door,
“Tis some debtor” I muttered, “tapping at my chamber door-
Only this and nothing more.”

Ah distinctly I recall, it was in the early fall
And the file still was small
The Code provided I could use it
If someone tried to substantially abuse it
No party asked that it be heard.
“Sua sponte” whispered a small black bird.

The bird himself, my only maven, strongly looked to be a raven.
Upon the words the bird had uttered
I gazed at all the files cluttered
“Sua sponte,” I recall, had no meaning; none at all.
And the cluttered files sprawl, drove a thought into my brain.

Eagerly I wished the morrow — vainly I had sought to borrow
From BAFJA, surcease of sorrow— and an order quick and plain
That this case would not remain as a source of further pain.
The procedure, it seemed plain.

As the case grew older, I perceived I must be bolder.
And must sua sponte act, to determine every fact,
If primarily consumer debts, are faced,
Perhaps this case is wrongly placed.
This is a thought that I must face, perhaps I should dismiss this case.

I moved sua sponte to dismiss it for I knew I would not miss it
The Code said I could, I knew it.
But not exactly how to do it, or perhaps some day I’d rue it.
I leaped up and struck my gavel.
For the mystery to unravel
Could I? Should I? Sua sponte, grant my motion to dismiss?

While it seemed the thing to do, suddenly I thought of this.
Looking, looking towards the future and to what there was to see
If my motion, it was granted and an appeal came to be,
Who would be the appellee?
Surely, it would not be me.

Who would file, but pray tell me, a learned brief for the appellee
The District Judge would not do so
At least this much I do know.
Tell me raven, how to go.

As I with the ruling wrestled
In the statute I saw nestled
A presumption with a flavor clearly in the debtor’s favor.
No evidence had I taken
Sua sponte appeared foresaken.

Now my motion caused me terror
A dismissal would be error.
Upon consideration of § 707(b), in anguish, loud I cried
The court’s sua sponte motion to dismiss under § 707(b) is denied.

In re Love, 61 BR 558 (FLSD Bankr. 1986).