February 2, 2012
While perusing my 2012 Green Bag Almanac, I came across a Kozinski concurrence that the Green Bag recognized as exemplary, United States v. Alvarez, 638 F.3d 666 (9th Cir. 2011). What struck me about the opinion is the attention-grabbing power of its opening:
According to our dissenting colleagues, “non-satirical and non-theatrical [ ] knowingly false statements of fact are always unprotected” by the First Amendment. United States v. Alvarez, 617 F.3d 1198, 1224 (9th Cir.2010) (Bybee, J., dissenting); see also O'Scannlain dissent at 677–78; cf. Gould dissent at 687. Not “often,” not “sometimes,” but always. Not “if the government has an important interest” nor “if someone's harmed” nor “if it's made in public,” but always. “Always” is a deliciously dangerous word, often eaten with a side of crow.
The opening made me reflect on the overall importance of primacy in legal writing. Getting the reader's attention early is critical in brief writing because the reader is also the decision maker. But grabbing attention in judicial opinion writing sometimes seems to serve other interests, like legal writing as high art, humor, or increasing public awareness of the law. The circuit judge also has an audience that makes decisions, most notably the United States Supreme Court. In Alvarez, Kozinski's concurrence received attention from his audience in the form of a cert grant. The case will be argued in a few weeks. Mission accomplished?
February 2, 2012 | Permalink
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Judge Kozinski's opening paragraph in Alvarez was truly masterful. But it's the second paragraph that really gives the first its power. The second paragraph describes what that edenic world look like if every false statement was unprotected. It will be a treat to watch the Supreme Court deal with Alvarez and the conflicting Strandlof opinion from the 10th circuit.
Posted by: Jerry E. Stephens | Feb 3, 2012 4:50:07 AM
Is it Green Bag rather than Greenbook?
Posted by: Norman Otto Stockmeyer | Feb 3, 2012 6:41:27 AM
Great posting! Although I am against lying on religious grounds, I think his paragraph (see below) about why the First Amendment protects some lies was especially persuasive (and funny!).
"Saints may always tell the truth, but for mortals living means lying. We lie to protect our privacy (“No, I don’t live around here”); to avoid hurt feelings (“Friday is my study night”); to make others feel better (“Gee you’ve gotten skin- ny”); to avoid recriminations (“I only lost $10 at poker”); to prevent grief (“The doc says you’re getting better”); to main- tain domestic tranquility (“She’s just a friend”); to avoid social stigma (“I just haven’t met the right woman”); for career advancement (“I’m sooo lucky to have a smart boss like you”); to avoid being lonely (“I love opera”); to eliminate a rival (“He has a boyfriend”); to achieve an objective (“But I love you so much”); to defeat an objective (“I’m allergic to latex”); to make an exit (“It’s not you, it’s me”); to delay the inevitable (“The check is in the mail”); to communicate dis- pleasure (“There’s nothing wrong”); to get someone off your back (“I’ll call you about lunch”); to escape a nudnik (“My mother’s on the other line”); to namedrop (“We go way back”); to set up a surprise party (“I need help moving the piano”); to buy time (“I’m on my way”); to keep up appear- ances (“We’re not talking divorce”); to avoid taking out the trash (“My back hurts”); to duck an obligation (“I’ve got a headache”); to maintain a public image (“I go to church every Sunday”); to make a point (“Ich bin ein Berliner”); to save face (“I had too much to drink”); to humor (“Correct as usual, King Friday”); to avoid embarrassment (“That wasn’t me”); to curry favor (“I’ve read all your books”); to get a clerkship (“You’re the greatest living jurist”); or to maintain innocence (“There are eight tiny reindeer on the rooftop”)."
Posted by: Eric Voigt | Feb 4, 2012 9:16:59 AM
You identified a first paragraph in a concurring opinion for its "attention-grabbing power." Let me suggest another from the District of Columbia Circuit court. This is the first paragraph to the majority opinion authored by Circuit Judge Kavanaugh: "This is not your typical lawsuit against the government. Plaintiffs here have sued because the don't want government benefits. They seek to disclaim their legal entitlement to Medicare Part A benefits for hospitalization costs. Plaintiffs want to disclaim their legal entitlement to Medicare Part A benefits because their private insurers limit coverage for patients who are entitled to Medicare Part A benefits. And plaintiffs would prefer to receive coverage from their private insurers rather than from the Government." The opinion: Brian Hall, et al. v. Kathleen Sebelius (opinion no. 11-5076) (circuit docket no. 1:08-CV-01715) released on February 7, 2012. Circuit Judge Henderson, in her dissenting opinion, cites to Arthur Conan Doyle and Sherlock Holmes in her opening paragraph. All in all, two worthy openers for their attention-grabbing style.
Posted by: Jerry E. Stephens | Feb 7, 2012 10:23:19 AM