Bons Mots, Buffoonery, and the Bench: The Role of Humor in Judicial Opinions
Lucas K. Hori
60 UCLA L. Rev. Disc. 16
In the year 1709, Anthony Cooper, Earl of Shaftesbury, wrote, “‘Twas the saying of an ancient sage that humour was the only test of gravity, and gravity of humour. For a subject which would not bear raillery was suspicious; and a jest which would not bear a serious examination was certainly false wit.”1 The wisdom of this observation rings true for the many judges who infuse their judicial opinions with humor. Few documents carry more gravitas than opinions handed down from the bench; citizens’ finances, livelihoods, and liberties depend on court orders. Nonetheless, judges find occasion to sneak humor into these solemn works, and some even argue that jesting deserves sincere consideration. “[H]umor,” Chief Judge Alex Kozinski of the Ninth Circuit Court of Appeals writes, “is the pepper spray in the arsenal of persuasive literary ordnance: It is often surprising, disarming and, when delivered with precision, highly effective.”2
While some commentators laud the use of humor in judicial opinions,3 others find it misplaced, arguing that court comedy disrespects parties and distracts from the merits of a case.4 Still others are ambivalent.5 Judge William Prosser, in his well-known book The Judicial Humorist, states that “the bench is not an appropriate place for unseemly levity. . . . [The litigant’s] entire future, or even his life, may be trembling in the balance, and the robed buffoon who makes merry at his expense should be choked with his own wig.”6 He concludes, however, that “on rare occasions there are litigants deserving only of ridicule, and situations that call only for mirth.”7
This Essay explores judicial humor.8 Part I considers what makes a judicial opinion humorous. Part II then categorizes judicial humor and presents exemplary writings in each category. Finally, Part III and the Conclusion evaluate arguments for and against the use of humor in judicial writings and suggest instances when humor is proper. So long as it is brief and respectful of litigants, judicial humor can be a useful tool, allowing a judge to add personality to an opinion and pique readers’ interest.
I. What Makes Us Laugh?
Humor is not easy to define, and as a result, it is difficult to gauge what makes a judicial opinion funny. The attempt to understand what makes us laugh is often futile, leading the author E. B. White to observe that
[h]umor can be dissected, as a frog can, but the thing dies in the process and the innards are discouraging to any but the pure scientific mind . . . . It has a certain fragility, an evasiveness, which one had best respect.9
Citing this warning, Judge George Smith nonetheless proceeded to analyze humor’s place in a judicial opinion in A Critique of Judicial Humor.10 First, Judge Smith noted that a judge must carefully weave playfulness into a writing which, by its nature, is very serious. This is a difficult task, at which only the most adept writers are successful.11 Further, judicial opinions force a judge to use the written word to create humor, precluding the use of gestures and expressions that accompany successful spoken comedy.12 Third, Judge Smith observed that a judge drafting an opinion must draw from a case’s record, making it difficult to achieve spontaneity in her comments.13 Knowledge of the underlying facts reduces the element of surprise that is often essential to humor.14 Finally, a judge lacks an audience “primed” for humor.15 “[A] judge’s humorous passages . . . are usually read by a sober lawyer or judge sitting alone in his office. Shouts of prolonged laughter are unlikely.”16 In light of these factors, Judge Smith concluded that a notably funny opinion is a rare breed.17
While Judge Smith argued that a judicial opinion is a poor forum for comedy, scientific study of humor suggests that judicial opinions may not be the worst place to draw laughs. Arthur Berger summarizes four theories of humor in American Behavioral Scientist: superiority theories, incongruity theories, psychoanalytic theories, and cognitive theories.18 In broad terms, psychoanalytic and cognitive theories address the importance of internal psychology to humor, while superiority and incongruity theories acknowledge that external circumstances contribute to our sense of what is funny.19 Since judicial writings rely on external factual circumstances for humor, this Essay applies the latter two theories to court opinions.
The superiority theory posits that we take pleasure from feeling that we are superior to others. Thomas Hobbes perceptively summarized the theory:
[T]he passion of laughter is nothing else but a sudden glory arising from sudden conception of some eminency in ourselves, by comparison with the infirmities of others, or with our own formerly: for men laugh at the follies of themselves past, when they come suddenly to remembrance, except they bring with them any present dishonour.20
Superiority theory, which explains why one might find mockery and ridicule amusing,21 is relevant to judicial humor. Judicial opinions resolve differences between parties who have expended significant resources to air their grievances in public. Authors and nonparty readers of opinions feel a sense of superiority over the entrenched parties; upon reading about a sticky dispute, a legal practitioner or student might justifiably conclude, “I’m glad that’s not me.” Judges draw on this reaction in drafting humorous opinions.
Main v. Main, an Iowa Supreme Court decision involving an action for divorce for cruel and inhuman treatment, illustrates the superiority theory.22 The allegations of domestic discord, though doubtless distressing to the parties, stirred Judge Silas M. Weaver’s23 cynical inclinations. He wrote:
The parties did not drift into love unconsciously, as sometimes happens with younger and less experienced couples. Both knew from the start exactly what they wanted. She wanted a husband with money—or money with a husband. He wanted a wife to adorn his house and insure that conjugal felicity of which fate and the divorce court had repeatedly deprived him.24
According to superiority theorists, the humor in this passage, if the passage is humorous at all, springs from readers’ feelings of eminency upon learning of the unfortunate courtship of the divorced couple. If this sense of superiority is indeed the reason one finds the passage funny, judicial opinions are ripe with opportunities for humor. It is the nature of the adversarial system that judges frequently find themselves resolving disputes between parties in difficult situations. By magnifying the absurdity of the dispute for nonparties, judges can evoke feelings of superiority and, in turn, a humorous response in readers.
The second theory of humor this Essay addresses—the incongruity theory—is likewise relevant to judicial opinions. This theory proposes that, at the root of humor are “the differences between the expected and the received, inconsistencies between circumstances and the person—basically a surprise, as seen in the normative structure of a joke.”25 Humor is the pleasurable experience that results from a resolution of the expected and unexpected.26 Because an opinion is a serious document, the reader expects its content to be dry and stern. From the perspective of the incongruity theorist, however, judicial opinions can be fertile ground for humor when the insertion of playful or unusual language creates an incongruity.27 When the reader resolves the incongruity, he finds the opinion funny.
Judge Kozinski took advantage of this effect in United States v. Syufy, an opinion concerning an antitrust action against a movie theater owner.28 Throughout the opinion, Judge Kozinski worked in 215 movie titles, all while maintaining a serious judicial tone.29 For example, he noted that “movie distributors are not exactly a powerless lot, likely to surrender the first time they are presented with hard choices by a theatre operator; nor are they reluctant to precipitate a showdown when they believe their rights are being infringed.”30 Consequently, a reader gradually recognizes the incongruity between the facially stern opinion and the underlying puns and double entendres. When the reader recognizes Judge Kozinski’s clever ploy and resolves the incongruity between the primary and secondary meanings of the words, laughter results.
Given humor’s enigmatic nature, scholars may long debate whether a judicial opinion is an effective vehicle for drawing laughs. This Essay suggests that circumscribed use of humor in court orders is appropriate. Whether judges heed the academic discourse on judicial humor, however, there is no doubt that many judges have tried their hand at drafting humorous opinions. Part II presents some famous—and infamous—examples of judicial humor.
II. Playful Precedent
Since the advent of the written opinion, reporters have recorded funny cases for posterity. In 1622, for instance, the King’s Bench resolved a dispute between a brewer and a patron in Dickes v. Fenne.31 The patron had insulted the brewer’s product by communicating that “he would give a peck of malt to his mare, and she should pisse as good beare as [the brewer] doth Brew.”32 Though the court determined these words were not actionable, incorporating this quotation into the record of the parties’ dispute ensured that the legal community could delight in the situation centuries later.
Cases that are funny simply on their facts comprise my first category of examples. Any recitation of the facts in Dickes would naturally be amusing: Even if the judge had done nothing to add his own embellishments, the circumstances provided the humor. Unique factual circumstances such as those in Dickes continue to facilitate judicial humor today. So long as men and women make their exits and entrances onto the stage of life, ridiculous and unlikely fact patterns will provide fodder for humorous opinions.33
Judges also enliven otherwise mundane opinions with creativity and wit, however, oftentimes through poetry or unique literary devices. Judicial writings have parodied famous literary works, quoted song lyrics, and cited fables. Thus, the second category of this Essay includes well-known humorous opinions that depart from traditional forms of legal prose. Finally, judges may invoke humor by playing with words or making puns. Courts draw laughs by working crafty references to popular culture and clever phrases into opinions. Examples of such wordplay make up my third category of judicial humor.
A. Fun on the Facts
Mere recitation of the facts in some cases may provoke laughter from the opinion author’s audience.34 Among the best examples of such an opinion is the New York negligence case Peevey v. Burgess,35 involving a defendant who enjoyed chewing tobacco.36 To facilitate his habit, the defendant “had attached a homemade spittoon to the emergency brake release handle under the dashboard” of his pickup truck.37 On the day of the event at issue, the defendant took his truck in for service. Presiding Judge M. Dolores Denman stated the facts as follows:
[T]he spittoon contained about six ounces of spit. After . . . mechanic Robert Shaff completed his work on the truck’s alignment, he opened the driver’s door to get a better view as he backed the truck off the service ramp. Shaff shifted the truck into reverse and bent to find the emergency brake release. When he pulled the handle and released the brake, the brake pedal popped up and struck the spittoon, spraying its contents into Shaff’s face. As a result, Shaff’s eyes burned and he became disoriented, lost control of the truck and fell out. Defendant’s truck continued down the ramp and struck a vehicle being repaired by plaintiff . . . .38
No one involved in the case intended it to be humorous. The accident, which seriously injured the plaintiff, did not amuse the parties, who were in the midst of ongoing litigation. Further, the judge did not present the facts in an intentionally humorous manner. Regardless, by describing the occurrence of an implausible and disastrous series of events, the opinion naturally provokes amusement in a reader.
Frank v. NBC, another opinion funny solely on the facts, concerned a tax accountant’s allegations that a Saturday Night Live skit defamed him.39 The plaintiff, Maurice Frank, complained that the skit’s protagonist, a tax consultant named “Fast Frank,” “bore a noticeable physical resemblance” to him.40 In the skit, Fast Frank gave questionable tax advice; he recommended claiming houseplants as dependents, using midnight visits to the restroom to create write-offs for “business trips,” and deducting divorce expenses as “home improvement.”41 Although the plaintiff categorized this advice as “ludicrously inappropriate,” the New York trial court found he failed to state a cause of action for defamation.42
Suits against the devil also make for amusing opinions. In United States ex rel. Mayo v. Satan & His Staff,43 the plaintiff alleged that “Satan has on numerous occasions caused plaintiff misery and unwarranted threats, against the will of plaintiff, that Satan has placed deliberate obstacles in his path and has caused plaintiff’s downfall.”44 Noting that, among other problems, this claim raised the possibility of an unwieldy class action, the court declined to allow the plaintiff to proceed in forma pauperis.45
In none of these cases did the court intentionally poke fun at the parties’ circumstances. Other times, however, a judge adds his own commentary to make an otherwise serious factual pattern appear more amusing. In Cordas v. Peerless Transportation Co., a thief fleeing the scene of a crime forced a chauffeur to facilitate his escape at gunpoint.46 The driver, terrified, jumped out of his moving taxi, which then ran into a mother and her children.47 The facts, though unusual, are more tragic than amusing. Justice Frank Carlin crafted an entertaining opinion, however, incorporating references to Scylla and Charybdis48 and ultimately excusing the driver by asking the following rhetorical question:
If the philosophic Horatio and the martial companions of his watch were “distilled almost to jelly with the act of fear” when they beheld “in the dead vast and middle of the night” the disembodied spirit of Hamlet’s father stalk majestically by “with a countenance more in sorrow than in anger” was not the chauffeur, though unacquainted with the example of these eminent men-at-arms, more amply justified in his fearsome reactions when he was more palpably confronted by a thing of flesh and blood bearing in its hand an engine of destruction which depended for its lethal purpose upon the quiver of a hair?49
Given the harrowing facts of Cordas, Justice Carlin could have drafted a humorless order. By writing humor into the opinion, however, the judge exposed his personality and lightened what was an otherwise dramatic situation.
B. Meter and Myth
When judges do not have the advantage of a naturally humorous fact pattern, some provoke laughs through literary devices that are unorthodox in legal writing. The poem is one of the most common instruments of judicial humor.50 In her article on the propriety of poetry in judicial opinions, Mary Kate Kearney gives several reasons judges might craft an opinion in verse.51 First, Kearney suggests that a poetic opinion might capture a reader’s attention and be more accessible to the general public than normal, formulaic legal writing.52 Even an individual lacking legal training can comprehend the simple language of an opinion written in verse.53 Additionally, and perhaps most importantly, a rhyming opinion allows a judge (or, more likely, her clerk) to “break the monotony of opinion writing.”54 Finally, writing in verse forces economy of expression by stripping a case down to its essential components.55 Regardless of the justification, many judges have written poems into their opinions.56
Though the quality of judicial verse varies, Fisher v. Lowe57 exemplifies one of the more successful attempts at incorporating poetry into a legal opinion.58 Lowe was a tort action in which the plaintiff alleged that the defendants’ automobile had struck her “beautiful oak tree.”59 The trial court granted summary judgment to the defendants, and on appeal, Judge John H. Gillis drew upon Joyce Kilmer’s poem “Trees” to dispose of the matter. He quoted the following verse:
We thought that we would never see
Although Judge Gillis’s even meter and integrity to Kilmer’s original poem made his opinion remarkable, Lowe is not unique in using a famous work as a template. The opinion in In re Love,61 a bankruptcy case, parodied Edgar Allan Poe’s “The Raven” and concluded
Now my motion caused me terror
Some judges have quoted the work of others to make their points. In Van Kleeck v. Ramer, Justice Tully Scott cited the entirety of Sam Walter Foss’s poem “The Calf-Path” in a dissent warning against blindly following bad precedent.63 Songs also find their way into judicial opinions: Judge Stephen Reinhardt cited Arlo Guthrie at length in Henry v. County of Shasta,64 while Chief Judge Stephanie Seymour included the lyrics of John Denver and the Grateful Dead in United States v. Youts.65
Other judges, inspired by famous works, have abandoned verse altogether, drawing instead on other literary devices. Zim v. Western Publishing Co.,66 for example, employed a Biblical motif for humorous effect:
In the beginning, Zim created the concept of the Golden Guides. For the earth was dark and ignorance filled the void. And Zim said, let there be enlightenment and there was enlightenment. In the Golden Guides, Zim created the heavens (STARS) (SKY OBSERVER’S GUIDE) and the earth. (MINERALS) (ROCKS AND MINERALS) (GEOLOGY).67
Finally, Justice William Douglas of the U.S. Supreme Court used a fable in one of his opinions, proving that even the nation’s highest tribunal is not immune from humor.68 In a case declaring unconstitutional an Arizona statute requiring one year of state residency as a condition to eligibility for health benefits, Justice Douglas filed a separate opinion expressing concerns about the financial realities of health care.69 An appendix to his opinion contained a fable about “Gourmand,” an imaginary nation.70 The fable described Gourmand’s collapse after its citizens, striving to consume only the most gourmet cuisine, ignored all civic duties. The tale cautioned against creating unworkable, overly regulated government systems.71 Seizing on Douglas’s precedent, Chief Judge Donald Lay of the Eighth Circuit Court of Appeals likewise appended a fable of his own to his dissenting opinion in Hatfield ex rel. Hatfield v. Bishop Clarkson Memorial Hospital.72 Judge Lay’s fable featured Wilhelm Virtuoso, a young musician who had fought the odds to become an excellent violin player, only to have his success stymied by indecisive judges at music competitions.73 Judge Lay meant to illustrate the consequences of court-created procedural delays, but the fable also added humor to an otherwise dry subject.
C. Wordplay and Witticisms
A third way judges craft funny opinions is with puns and the clever use of words. This is likely the most common expression of judicial humor; many opinions contain a droll turn of phrase or a witty footnote. Some judges, however, wield language in an especially noteworthy way. Judge Stephen Reinhardt played with words in a recent Ninth Circuit opinion finding unconstitutional California’s Proposition 8 amendment, which revoked the right of same-sex couples to marry in the state.74 Judge Reinhardt, emphasizing the cultural importance of the term “marriage,” pointed out that
Groucho Marx’s one-liner, “Marriage is a wonderful institution . . . but who wants to live in an institution?” would lack its punch if the word “marriage” were replaced with the alternative phrase. So too with Shakespeare’s “A young man married is a man that’s marr’d,” Lincoln’s “Marriage is neither heaven nor hell, it is simply purgatory,” and Sinatra’s “A man doesn’t know what happiness is until he’s married. By then it’s too late.” We see tropes like “marrying for love” versus “marrying for money” played out again and again in our films and literature because of the recognized importance and permanence of the marriage relationship.75
By emphasizing the many uses of the word “marriage” in popular culture, Judge Reinhardt made his argument in a clear, lighthearted way.
Judges also employ puns in their opinions. One example comes from a Fifth Circuit case concerning detergent labels,76 in which Judge John Brown slipped the names of many soap brands into his concurrence:
Clearly, the decision represents a Gamble since we risk a Cascade of criticism from an increasing Tide of ecology-minded citizens. Yet, a contrary decision would most likely have precipitated a Niagara of complaints from an industry which justifiably seeks uniformity in the laws with which it must comply. Inspired by the legendary valor of Ajax, who withstood Hector’s lance, we have Boldly chosen the course of uniformity in reversing the lower Court’s decision upholding Dade County’s local labeling laws.77
While Judge Brown’s opinion concerned the mundane, the opinion in Stambovsky v. Ackley78 employed puns to address the metaphysical. That case involved a homebuyer’s complaint that poltergeists possessed his newly purchased residence.79 The New York court concluded that “the notion that a haunting is a condition which can and should be ascertained upon reasonable inspection of the premises is a hobgoblin which should be exorcised from the body of legal precedent and laid quietly to rest.”80 Finally, in a case concerning Kentucky Fried Chicken, Judge Irving Goldberg brilliantly observed that
[t]his case presents us with something mundane, something novel, and something bizarre. . . . [T]he bizarre element is the facially implausible—some might say unappetizing—contention that the man whose chicken is “finger-lickin’ good” has unclean hands.81
Unfortunately, though puns have created some notable judicial humor, their misuse has also marked comedic low points. Among these is Judge James Burn’s opinion in Oregon Natural Resources Council v. Marsh,82 a case about a contract for the construction of a large dam. Judge Burn recognized the opportunity to incorporate a pun—but then proceeded to beat it to death:
This dam case is back. When the case was here before, there was only a dam plan. Now there is half a dam. The chore assigned on remand by the Court of Appeals requires me to determine what sort of half dam is a good (i.e., safe) half dam and which is a bad (i.e., unsafe) half dam. This assignment might seem strange, since my efforts earlier to determine whether the dam plan was good were not even half as good as those of the Court of Appeals.83
Given the threat that judicial humor can fall as flat as it did in Marsh, some have questioned whether judicial jesting is appropriate, or whether all opinions should be written in the familiar, serious tone. Part III of this Essay attempts to answer this question.
III. Is Legal Levity Proper?
A. A Published Polemic
Although many judges have employed humor in their official writings, others believe that levity has no place in a court document. Russell v. State,84 a case from Georgia’s Court of Appeals, brought this difference of opinions into stark focus. In the text of the published opinion, Judges Braswell Deen and George Carley publicly debated the proper use of humor. The case was an appeal from a conviction for criminal damage to property. The appellant had vandalized the house of an ex-boyfriend and his new wife, destroying their waterbed and stealing wedding mementos. Judge Deen, author of the majority opinion, noted, “The events of the instant case dramatically illustrate the stark truth underlying the poetic adage, ‘. . . Hell [has no] fury like a woman scorned.’”85 Judge Deen then proceeded to pen a lighthearted opinion affirming the appellant’s conviction.
Judge Carley took issue with his colleague’s style. In a concurrence filed with the other member of the three-judge panel, Judge Carley stated succinctly:
I agree that the judgment of conviction should be affirmed. However, I cannot join the majority opinion because I do not believe that humor has a place in an opinion which resolves legal issues affecting the rights, obligations, and, in this case, the liberty of citizens. The case certainly is not funny to the litigants.86
The parties then moved for a rehearing. Judge Deen, stung by Judge Carley’s reproach, wrote a lengthy opinion denying the motion for rehearing and defending the use of “colorful quotes and language of levity.”87 Noting that “[a] sense of humor can complement fine judicial standards, . . . ward off the highly infectious disease ‘black-robe-itis,’ and . . . immunize Judges to the abhorrent judicial ailment known as the ‘divinity virus,’” Judge Deen cited numerous Georgia opinions containing witty language and observed that his order carefully addressed the issues at bar.88 He concluded by asserting the superiority of his opinion over the “scanty, shallow, swift, short-shrift” judgment-only opinions the court frequently issued.89
B. Scholarly Suggestions
Although Judge Carley had no opportunity to respond to Judge Deen in public, scholars in the legal community continue to debate the propriety of judicial humor. Generally, those who oppose the use of judicial humor focus on the solemnity of a legal opinion. Litigants endow judges with the power to resolve their controversies. Judges, in turn, are responsible for treating the parties with respect and equity. Using humor to poke fun arguably flouts this responsibility.90 Further, parties who feel demeaned have no way to defend themselves; a judge will always have the upper hand because she has the authority to resolve the dispute. Judge Smith noted that a judge “tak[ing] advantage of his criticism-insulated, retaliation-proof position to display his wit is contemptible, like hitting a man when he’s down.”91
Even if judicial humor does not demean the parties, opponents argue that it also obfuscates the legal issues at the expense of creating solid precedent. Its use, they contend, is a red herring that distracts from the core holding of an opinion.92 Further, because judges are public employees, time spent crafting judicial jokes is reimbursed on the public dime. Since budget cuts have put courts under great strain in recent years, one could argue that using valuable time to pen funny opinions is unconscionable.93
Proponents of judicial humor take a different view. First, proponents argue that judicial humor does not necessarily demean the parties to the action.94 For example, Judge Reinhardt’s opinion in Perry v. Brown,95 discussed above, included popular references to the word “marriage.” However, it would be difficult for either party to complain that this whimsical digression was demeaning. Further, proponents argue that judicial humor makes opinions more readable.96 Indeed, “[i]mages and informal language make an opinion much easier to read and understand” and “can help crystallize a point, put it in context, and breathe life into the set of facts that the law has formalized.”97 Finally, crafting humor can give judges a sense of engagement and fulfillment by allowing them to exercise their creative talents while in chambers.98
C. The Code of Judicial Conduct and In re Rome
Despite the debate over judicial humor among judges and scholars, the Model Code of Judicial Conduct (the Code)99 has surprisingly little to say on the matter.100 Canons 1 and 2 of the Code most directly apply to judicial humor and read, in relevant part, as follows:
As the Code does not prohibit judicial humor, there appears to be only one instance in which a disciplinary body took action as the result of a judge’s written attempts at comedy.102 Kansas trial court Judge Richard Rome, writing in a criminal prostitution case, docketed the following poem under the title “Memorandum Decision”103:
This is the saga of [defendant]
Unfortunately for Judge Rome, a local newspaper published the piece, which led to negative public reaction.105 Kansas’ Commission of Judicial Proceedings recommended that the judge receive public censure.106 Judge Rome rejected this finding, and the “imbroglio” reached the state’s Supreme Court for determination.107 The high court noted that “[j]udicial humor is neither judicial nor humorous,” and found that “the defendant in the prostitution case was portrayed in a ludicrous or comical situation—someone to be laughed at and her plight found amusing.”108 Ultimately, the court censured Judge Rome for violating Canon 3 of the state’s Judicial Code,109 which provided that a “judge should perform the duties of his office impartially and diligently.”110 The court noted that it expected a judge to afford “even-handed treatment to everyone coming into contact with the judicial system.”111 As a result of the mocking memorandum decision, the defendant had not received such treatment.112 The Rome decision, as it stands, apparently provides the lone precedent for punishing a judge for a cheeky opinion. It does suggest, however, that at some point a judge’s humor amounts to such an abuse of discretion that it is objectively impermissible.
In light of the debate over the use of judicial humor, this Essay concludes with a few thoughts on its proper use. While humor is sometimes appropriate in court orders, a judge must take care to ensure that the comedic aspect of an opinion does not detract from its legal substance or humiliate the parties to the lawsuit.
First, although several commentators noted above argue that judges should excise humor altogether from judicial writing,113 this is not practical. As discussed, some cases are naturally funny.114 No matter how serious the judge’s tone, judicial humor is unavoidable in this context. Additionally, hundreds of creative, independent, and talented judges write the volumes of opinions that compose our legal system. A rule forbidding these judges from using clever phrases or witty observations would be practically impossible to enforce, and policing judicial opinions to punish any ostensibly funny comment would be unreasonable.115 Further, the legal profession prides itself on incisive and well-crafted writing.116 Accordingly, judges should be free to employ a variety of writing styles. Preventing judges from using humor would ultimately quell the creation of unique opinions that employ creative means to convey difficult concepts. In the process, the legal profession would lose the tradition of fun opinions.117
Nonetheless, if they intend to use humor in their opinions, judges should keep in mind two guiding principles. First, judges would be well served to keep humor brief. Humor should not overwhelm the substance of the opinion but should provide a respite from the serious legal matter.118 Judge Kozinski, an excellent writer, is a master at short comedic bursts. In a 1988 dissent to a case requiring statutory interpretation, he aptly noted that “[a]s a linguistic matter, ‘and’ and ‘or’ are not synonyms; indeed, they are more nearly antonyms. One need only start the day with a breakfast of ham or eggs to be duly impressed by the difference.”119 Using humor quickly to bolster an argument, and then moving on, is appropriate and useful.
Second, judges should critique their writing from the perspective of the parties to the case. Does the humor offend, or is it merely in good fun? A judge’s writing should never demean litigants or poke fun at them. Although a party may annoy or amuse a judge, expressing ridicule in a published opinion degrades the image of the justice system as a detached and neutral arbiter.120 Certain judges rely on biting or harsh comments to attract attention to their writing.121 As noted above, the superiority theory suggests that ridicule and belittlement are effective ways to invoke laughs.122 Although such scorn can be amusing for detached readers, it is not appropriate in judicial writing.123
Ultimately, the use of judicial humor should be left to the sound discretion of the bench. Although guidelines are instructive, they cannot encompass every circumstance. As in many other contexts, we rely on judges to monitor their own behavior and act in the best interest of litigants and the legal system.124 It is inevitable, from time to time, that a misled member of the judiciary will abuse her privileged position by writing a demeaning or biting opinion.125 However, I trust that the great majority of judges will respect their position of authority. Permitting these members of the bench to write in creative, humorous ways will add interest and clarity to legal orders. Hopefully, in the process of adjudicating disputes impartially and respectfully, judges will also pen a few more witty opinions that future students of the law can cite for laughs.
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