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Monday, July 06, 2020

Pop culture, high culture, and judicial work-product

I see Gerard's point, while agreeing with one commenter that Kagan's opinion is likely to be read by the general public. And for what it is worth, Kagan's reference to Hamilton was oblique--a reference to the Broadway stage, while tying her point to the House vote as a cause of his duel with Burr.

But a question: Should it matter that Shakespeare or The Ililad or Canterbury Tales were pop culture in their times? Should judges wait 150 years to see what has staying power and what is lost to history? And should we think of other judicial work-product doing the same, such as the Chief Justice's 2019 Year-End Report, which explained why John Jay only wrote five Federalist essays, then said "perhaps if Jay had been more productive, America might have rewarded him with a Broadway musical." Does it make a difference that judicial opinions are expected to have a longer shelf life than an administrative report about one year in the courts?

Posted by Howard Wasserman on July 6, 2020 at 02:19 PM | Permalink


I continue to find the dispute a bit silly.

The references here were rather popular culture in nature, but again, those who read opinions over the years will see many references to various works and other allusions that are pretty topical. At this vantage point, however, they are pretty obscure.

The same would be true to a time specific reference. Let's say it was a copyright dispute and some reference is made to Victrola or something. Many would have to look that up. You can look up a reference to a major musical too. An opinion written in 1897 is likely to use somewhat different explanations than 1997 overall. This all seems more time sensitive than a few cultural references, basically meant to be playful (which bothers some people but that is a separate issue).

BTW, Kavanaugh in his opinion apparently slyly made a basketball reference ("John Marshall won't walk through the door" or something).

Posted by: Joe | Jul 7, 2020 10:11:58 AM

Two thoughts. Drawing the line at literary is difficult. How many judicial decisions discuss choices between Scylla and Charybdis instead of simply saying two evils? Assuming that the decision will be read by the public contemporaneously when the decision was written, a reference to Hamilton or Schoolhouse Rock is more likely to be understood than a reference to Shakespeare, which most people would not have read recently (if at all).

Posted by: Eric | Jul 7, 2020 9:26:10 AM

Folks praised Kagan and Gorsuch for their clear prose when they were nominated. Why? Because it is important that a lay person be able to pick up a legal source and understand what the law is demanding of them. Pop cultural references are only useful if they help explain the law, and then only if they can be reliably referenced by the future generations of lay people not yet born.

Never got to Chaucer in my public school's IB program, for what its worth...

Posted by: unaged | Jul 7, 2020 8:31:47 AM

If Obergefell v. Hodges is old enough to be part of the established canon of timeless human universals, isn't Hamilton since Hamilton is several months older?

Posted by: Temporal distancing | Jul 7, 2020 7:20:38 AM

I would argue there is a difference between quoting from an established and shared canon (i.e. Shakespeare, Home, and Chaucer whom most people in the US study during school), and a modern Broadway play.

That said, I'm also not keen on justices quoting from any literary source.

Posted by: thegreatdisappointment | Jul 7, 2020 5:06:30 AM

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