< Pop-ular Opinions


Friday, October 13, 2006

BOB GARFIELD: This is On the Media. I'm Bob Garfield.

BROOKE GLADSTONE: And I'm Brooke Gladstone. [VIDEO CLIP]

RICHARD DURBIN: You're a Bruce Springsteen fan?

SAMUEL ALITO: I am, to some degree, yes.

RICHARD DURBIN: They once asked him, how do you come up with the songs that you write and the characters that are in them? And he said, I have a familiarity with the crushing hand of fate. I want to ask you about the crushing hand of fate in several of your decisions.

BROOKE GLADSTONE: That was Democratic Senator Richard Durbin of Illinois questioning Samuel Alito during the Judiciary Committee's Supreme Court nomination hearings back in January. Alito, you may remember, is from New Jersey, and so Durbin -- well, I guess you could call it musical profiling. But it turns out Durbin was onto something. Judges, lawyers, legal scholars, they have a particular penchant for dropping musical references into their opinions and journals -- and not just any music. Alex Long is an associate professor at the Oklahoma City University School of Law and author of the paper, Insert Lyrics Here: The Uses and Misuses of Popular Music Lyrics in Legal Writing. He found that folk and folk-influenced artists from the '60s and '70s are the most frequently cited. In fact, his top 10 list reads like the tattered vinyl collection of the Baby Boom. We?re so predictable. Take it away, Alex.

ALEX LONG: Okay. Do you want to do a drum-roll or do you just want me to -


ALEX LONG: [LAUGHS] Number ten would be R.E.M. Number nine, Joni Mitchell. Number eight, Simon and Garfunkel. Seven, the Grateful Dead. Number six, the Rolling Stones. Five, Woody Guthrie, four, Paul Simon, three, Bruce Springsteen, two, the Beatles, and number one, not surprisingly, Bob Dylan.

BROOKE GLADSTONE: Bob Dylan. If there is such a thing as a rock poet, then it's probably Bob Dylan.

ALEX LONG: Dylan is largely described as the voice of a generation, and he is the voice of the generation that currently holds a lot of power in the legal profession. And the folk music revival of the early '60s often gets closely linked to the civil rights movement of the early '60s. And if you talk to a lot of older attorneys out there, you come to quickly realize that there are a lot of attorneys, and, in fact, a lot of law professors who were inspired by the civil rights movement to become lawyers in the first place. So they've carried those memories and those feelings with them throughout their lives. And certainly have been good uses of Dylan's lyrics.

BROOKE GLADSTONE: Give me an example.

ALEX LONG: The example I'm thinking of is from a California appellate court that's attempting to explain what the legal standard is for when expert testimony is required. You know, a lot of times when jurors are hearing cases, there are certain concepts that they just, they lack the specific expertise or the knowledge necessary to fully make a decision in this case. Where, however, a matter is just within the common experience of the average person, you don't need an expert. And so in this particular case from California, the court said that - [MUSIC UP AND UNDER] - in the case of expert testimony, Bob Dylan articulates the appropriate legal role.

BOB DYLAN [SINGING]: - plain clothes. You don't need a weatherman to know which way the wind blows.

BROOKE GLADSTONE: Don't you say in your article that this particular citation from Subterranean Homesick Blues is used over and over again for the same reason?

ALEX LONG: Yeah. Well, that's the nature of legal opinion writing. You rely on precedent, and at this point, Bob Dylan has become ? or Subterranean Homesick Blues [BROOKE LAUGHS] has become precedent in California.

BROOKE GLADSTONE: And you note that country music doesn't make the list. And you ask why in the piece, and you say if one wanted to write about the problems of the working class, the lyrics of country music seem to be more than natural language. The folkies of the '50s and '60s sang about picking a bale of cotton. Johnny Cash actually did it. Pete Seeger was the Harvard-educated son of a renowned musicologist. Hank Williams never finished high school. But those authentic voices don't make the list.

ALEX LONG: Yeah. I think that country music is normally associated with conservative values. Country music sort of views change as a bad thing. You hear that theme used frequently in country music. And to the extent that country music is Republican or Democrat, it's Republican. Folk music, on the other hand, has always -- even though it's supposedly music about common people and about the folks, it's listened to and performed by largely liberal elites, or, at least, that's historically who listened to folk music. And so law professors, at least, are far more likely to associate with folk music than they are country music, for perhaps those reasons.

BROOKE GLADSTONE: Tell me what Mader vs. Motorola was about.

ALEX LONG: The issue in this case was just a simple dull, dry procedural issue. There was nothing particularly interesting about the case itself, and the courts made not one, but two references to popular music within the space of the same paragraph.

BROOKE GLADSTONE: Would you read it?

ALEX LONG: Sure. "The Beatles once sang about the long and winding road, but at the end of the day, the plaintiffs and their counsel were singing the Pink Floyd anthem, Another Brick in the Wall, after constantly banging their collective heads against a popular procedural wall [BROOKE LAUGHS] Northern District of Illinois Local Rule 12, governing the briefing and submission of summary judgment motions." THE BEATLES [SINGING]: The long and winding road that -- [MUSIC: ANOTHER BRICK IN THE WALL] [MUSIC: THE LONG AND WINDING ROAD]

BROOKE GLADSTONE: Well, it has a beat, but I don't think you can dance to it. [ALEX LAUGHS] Alex, another example that doesn't work appears in United States versus Jackson from the Fifth Circuit Court of Appeals. Could you do the honors again and recite the relevant passage?

ALEX LONG: This was a drug possession case, and in the case, the defendant was sitting on a bus. And eventually, law enforcement came onto the bus with a drug-detecting dog, and announced to all the riders on the bus that they were free to stay on the bus if they wanted, or they're welcome to leave if they like, and get back on the bus once the drug-sniffing dog had completed its duties. As it happened, Mr. Jackson actually had drugs on him, so the court said that Jackson was forced to ask himself what the Clash famously asked two decades ago. [BROOKE LAUGHS] [MUSIC UP AND UNDER] THE CLASH [SINGING]: Should I stay or should I go now? Should I stay or should I go now? If I go, there will be trouble, and if I stay it will be double. So you -

ALEX LONG: The court said that, doubtless, Jackson knew that if he stayed on the bus and the dog alerted him, there would be trouble, but given the officer's ultimate discovery of the cocaine strapped to his waist, the trouble turned out to be double, not withstanding [BROOKE LAUGHS] his decision to go.

BROOKE GLADSTONE: [LAUGHS] Someone worked really hard on that one, Alex.

ALEX LONG: Perhaps too hard. The first part of the quote, I think, is actually pretty clever. The defendant here was presented with a choice, [LAUGHS] should he stay or should I go? It actually does a nice job of describing the dilemma that he faced. It's after that that he gets into a little bit of trouble -- no pun intended -- because the song doesn't actually describe his dilemma at that point. If he had stayed on the bus, presumably the dog would have discovered the cocaine and he would have been arrested. There would have been trouble. But what he did was decide to get up off the bus and leave. And what happened? The dog sniffed the drugs, and he was arrested. [BROOKE LAUGHS] So even though he left, even [LAUGHS] though he went, his trouble wasn't really doubled. It was the same trouble as if he had stayed on the bus to begin with.

BROOKE GLADSTONE: Now [LAUGHS], there is a citation that you talk about that actually works. We mentioned that Bruce Springsteen came in at number three, and I'm not sure if Senator Durbin used Springsteen all that well in Alito's confirmation hearings. But you mention a federal magistrate, Judge Paul W. Grimm, who does, and it involves a Springsteen line that goes - [MUSIC UP AND UNDER] - "is a dream a lie if it don't come true?"

BRUCE SPRINGSTEEN [SINGING]: - a lie if it don't come true, or is it something worse? It sends me down -

ALEX LONG: Yeah. It's from the Springsteen song, The River. The problem that you see with a lot of legal writing that uses these lyrics is that the writer will usually preface the quote by saying, and as Bruce Springsteen once famously remarked. In this case, the judge simply used that line and then juxtaposed it with a quote from an individual who had allegedly been the victim of housing discrimination, who said that the former city commissioner had told the people in the neighborhood to dream, to dream about what this neighborhood could be, but he didn't tell us that the dream meant that we wouldn't be included. And all the judge did was simply use that quote and then put Springsteen's quote right next to it. It was just a nice turn of a phrase there.

BROOKE GLADSTONE: Did you say, finally, when you came upon that one?

ALEX LONG: [LAUGHS] Somebody got it right, yes.

BROOKE GLADSTONE: Alex, thank you very much.

ALEX LONG: Thank you.

BROOKE GLADSTONE: Alex Long is an associate professor at the Oklahoma City University School of Law, and author of the paper Insert Lyrics Here: The Uses and Misuses of Popular Music Lyrics in Legal Writing." [BOB DYLAN SINGS/UP AND UNDER]