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Monday, February 02, 2009

Misunderstood legal quotations

OK, Dear Readers: Let's play a law-geek game: Give and discuss examples of famous legal and law-related quotations or statements that are frequently thrown around (by lawyers and non-lawyers alike) in a way that completely and utterly misses the point of the original quotation or statement.

My nomination: Justice Stewart's famous concurring opinion in Jacobellis v. Ohio, saying of hard-core pornography "I know it when I see it."

How it comes up: Get into any conversation about the difficulty or impossibility of coming up with a meaningful and workable definition for some concept or idea (say, judicial activism or bipartisanship or what political views are so offensive as to be beyond the pale) and the response often will be something to the effect of, "Well, I think we can just use Justice Stewart's definition," with the implication that this is good enough to resolve the definitional problem and thus resolve the dispute.

Why it misses the point: After the jump:

Jacobellis was one of a series of cases from the mid-1960s when the Court, having established that obscenity is unprotected speech and established a somewhat weak definition in 1957, struggled to apply it. In just about all the cases, the Court reversed the obscenity conviction, but without a majority opinion and without anything close to agreement about a standard. Jacobellis itself was a 6-3 judgment producing four opinions in support of that judgment, including Stewart's two-paragraph statement for the ages.

But Stewart actually was arguing that the Court's definition of obscenity had been an attempt to define the undefinable and was, at some level, unworkable. In the sentence preceding his money quote, Stewart said only hard-core pornography could be obscene, but that he would not try to define that concept, suggesting he "could never succeed in intelligibly doing so." But forced to decide whether Jacobellis' conviction should stand, he concluded that this movie "is not that."

Stewart was not proposing a definition. Nor was he suggesting that "I know it when I see it" should be good enough. Quite the opposite--he was decrying the futility of ever finding a workable or even-handed definition and, to some extent, throwing up his hands at the effort (he would later join with Justice Brennan in rejecting any categorical definition of obscenity as unprotected speech). I do not read Stewart as finding this a good or acceptable state of affairs. And I definitely do not read him as saying that IKIWISI satisfies him or is or should be acceptable as a legal definition for anything. So to say "Oh, we'll just rely on Justice Stewart and we know __ when we see it," as if it can resolve anything, is to completely miss the point he was making.

Other examples to offer?

Posted by Howard Wasserman on February 2, 2009 at 06:29 AM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink


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My Nomination: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed……. Is a collective right.”

How it comes up: A Second Amendment argument is raised as the third or fourth argument for overturning a criminal weapons conviction in an appeal written by a jail house pro se defendant with a horrible set of facts. An Appellate court wants to invest as little time and effort as possible on what it sees as a throw away argument.

Why it misses the point: Because all Nine Justices agree that the Second Amendment is an individual right and there has never been a well reasoned opinion saying otherwise.

Why this is impressive: Because so many people hold such an aversion to firearms that they still believe it. Take a look at the ACLU http://www.aclu.org/crimjustice/gen/35904res20020304.html.

The ACLU of all organizations is saying that a unanimous decision of the Supreme Court (on the individual rights issue, I know it split 5-4 to affirm) is wrong, the right should belong to the government. In support of this they cite Miller which was: 1) 70 years old; 2) explicitly overruled; 3) was not briefed or argued by the defendant; and 4) doesn’t actually hold anything. The court quotes some founding era militia and gun possession laws, admits confusion, declines to accept the holding below, and remands. The defendant died and so did the appeal.

Why this is Scary: Because aversion to guns and intolerance of the Second Amendment will lead to the elimination of all of further rights. We just bid farewell to one President who believes that your (Fourth and Fifth Amendment) Rights can be suspended if you are accused of terrorism and your name is put on a list. And now the next administration believes your (Second Amendment) Rights can be suspended if you are accused of terrorism and your name is put on a list.


Posted by: Hayden O'Byrne | Feb 3, 2009 10:45:20 PM

"...law-related quotations or statements that are frequently thrown around (by lawyers and non-lawyers alike) in a way that completely and utterly misses the point of the original quotation or statement."

I nominate the principle or slogan that "politics is the art of the possible." I'm not sure who first said it or even what they intended by it, but I suspect it means something as basic as "Political practice consists in striving for the best results achievable in particular circumstances" (William Galston). Nonetheless, it's been understood or invoked in a rather perverse sense that effectively rationalizes the status quo, justifies incrementalist social policy or piecemeal social engineering, and/or unduly (because arbitrarily) circumscribes that which might be or truly is "possible:"

"The trouble is that the impossible and the inevitable do not come prelabeled in our social world. We can never know what really was possible, except in a trivial sense that whatever actually happened must ipso facto have fallen within the feasible set. Without some understanding of what might have been, however, we are incapable of evaluating the social order as it is. 'People do not know whether to congratulate themselves for what they have achieved given the obstacles they faced or condemn themselve for having squandered the possibilities they have had (Clifford Geertz).' Those contemplating political action, not knowing what is possible, do not know what to expect or demand. It is a mark of realism, perhaps of sanity itself, not to resist the inevitable or to insist upon the impossible--but only if what is said to be inevitable really is inevitable, and what is said to be impossible really is impossible [cf. the reasons why 'the proverbial dustbin [of history] may contain much of enduring worth.']. Often they are not. [Galston is here apropos: 'Utopia is realistic in that it assumes human and material preconditions that are neither logically nor empirically impossible, even though their simultaneous co-presence may be both unlikely and largely beyond human control to effect.'] One of the more pernicious political stratagems consists in the manipulation of perceptions of possibilities, thereby artificially constraining social choices." (Robert E. Goodin, Political Theory and Public Policy, 1982: 126)

Thus I'm reflexively suspicious whenever someone is hectoring political opponents or patronizingly lecturing others about politics being the "art of the possible."

Posted by: Patrick S. O'Donnell | Feb 2, 2009 6:44:42 PM

I'd have thought the most mis-used quote might be Dick The Butcher's line in Henry VI (pt. 2) "The first thing we do, let's kill all the lawyers".

Usually cited as good advice.

Often countered, that he's suggesting they remove an obstacle to the usurpation.

(But see http://www.spectacle.org/797/finkel.html for the suggestion it's really just a lawyer joke.)

Posted by: Michael Froomkin | Feb 2, 2009 12:17:05 PM


You seem to be responding to my invocation of Stewart's quote in comments to your second "bipartisanship" post. If that's the case, then you're (ironically) misconstruing my point.

Here's what I said: "I couldn't attempt to propose a bright-line test for 'partisanship' versus 'bipartisanship.' I suspect that most people would treat it in a way similar to Justice Stewart's approach in pornography cases."

In short, I wasn't "impl[ying]" that Stewart's line was "good enough to resolve the definitional problem and thus resolve the dispute." Quite the contrary! I was saying that I *couldn't* come up with a definition, and that many others couldn't, either.

Again, to tie this back to my point in previous comments, my point was that neither "bipartisanship" nor "effective policy" (nor, for that matter, "judicial activism," another term I invoked in my comments and you invoke here) were terms that could be easily defined by reference to neutral principles, and that neither should be categorically rejected on that ground.

But in that respect, I'd respectfully suggest that "effective policy" would be an IKIWISI term!

Posted by: Adam | Feb 2, 2009 10:23:20 AM

Nice post, but the use of "money quote" in this context makes me a little uncomfortable.

Posted by: James Grimmelmann | Feb 2, 2009 8:17:53 AM

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