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Monday, February 25, 2013

More on Judicial Language

As a follow up to my tongue-in-cheek post last Friday about language from judicial opinions I want to mention something that's bothered me for a while now, and see if people think I'm being over-sensitive: the jocular riffing on Justice Holmes's "Three generations of imbeciles is enough" language from Buck v. Bell

This came up again last week in the Supreme Court's oral argument in Bowman v. Monsanto Company, a patent case dealing with a farmer's claimed right to replicate patented seeds without a license from the patent holder.  At first glance, the case has a lot of implications for innovation in industries where the patented products can be easily replicated by persons possessing the product -- seeds, cell lines, etc.

Anyway, that sets up the context.  As reported by the New York Times, during the oral argument Justice Breyer said the following: “There are three generations of seeds. Maybe three generations of seeds is enough.”  Adam Liptak reported that his comment elicited "knowing chuckles" from the audience.  So that's the question: Should that be a laugh line?

I don't want to be a humorless scold.  On the other hand, riffing off a truly cruel remark seems gratuitous: there are enough funny lines in the U.S. Reports that we don't need to pick up on problematic ones.  Or is there a reason this particular line is not problematic?  Has the word "imbecile" been defanged by its increasingly humorous connotation of someone as just plain dumb?  (I guess that's possible: after all, "idiot" had the same clinical connotation at one point, which it seems to have lost.)  But it seems to me the problem with the phrase in question is not just with the word "imbecile," but with the entire phrase, which inevitably calls to mind the cruel ideology behind Buck.  Is it really OK to make that reference as a joke?  Have we so clearly moved past Buck that it's safe to joke about it?  

I'm truly curious about this.  In what seems to be a hyper-cautious age, using this phrase doesn't seem to elicit any reaction.  Is there a good reason for that?


Posted by Bill Araiza on February 25, 2013 at 07:06 AM | Permalink


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I found this comment not worth a laugh line. I think far too many people have forgotten the horrible fate of Carrie Buck, and Breyer unfortunately channels Holmes's flippancy.

Posted by: Josh Blackman | Feb 25, 2013 11:14:42 AM

I've read criticisms of Breyer's joke with some surprise. It seems to me that if there is a butt to that joke, the Court is the target. You're right that it "calls to mind the cruel ideology behind Buck." But that just demonstrates how very fallible the Court is, and reminds that even its expressions of pithy certitude can be flat wrong. I think it's healthy to poke fun of yourself as an institution and remind everyone of your failings from time to time. And that is how I took the joke.

Posted by: Ryan Killian | Feb 25, 2013 1:23:49 PM

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