Tuesday, July 01, 2008
It is embarassing to be scooped on this, but it's a great story nevertheless: Adam Liptak reports that Justice Roberts incorrectly quotes "Like A Rolling Stone" in his dissenting opinion in Sprint Communications v. APCC Services.
Per Roberts:
"The absence of any right to the substantive recovery means that respondents cannot benefit from the judgment they seek and thus lack Article III standing," Chief Justice Roberts wrote. " 'When you got nothing, you got nothing to lose.' Bob Dylan, Like a Rolling Stone, on Highway 61 Revisited (Columbia Records 1965)."
Per Liptak:
"What Mr. Dylan actually sings, of course, is, "When you ain’t got nothing, you got nothing to lose." It’s true that many Web sites, including Mr. Dylan’s official one, reproduce the lyric as Chief Justice Roberts does. But a more careful Dylanist might have consulted his iPod.
Liptak continues, "Alex B. Long, a law professor at the University of Tennessee and perhaps the nation’s leading authority on the citation of popular music in judicial opinions, said this was almost certainly the first use of a rock lyric to buttress a legal proposition in a Supreme Court decision. "It’s a landmark opinion," Professor Long said. In the lower courts, according to a study Professor Long published in the Washington & Lee Law Review last year, Mr. Dylan is by far the most cited songwriter. He has been quoted in 26 opinions. Paul Simon is next, with 8 (12 if you count those attributed to Simon & Garfunkel). Bruce Springsteen has 5. But Mr. Dylan has only once before been cited as an authority on Article III standing, which concerns who can bring a lawsuit in federal court. His key contribution to legal discourse has been in another area. 'The correct rule on the necessity of expert testimony has been summarized by Bob Dylan: 'You don’t need a weatherman to know which way the wind blows,' " a California appeals court wrote in 1981, citing "Subterranean Homesick Blues." Eighteen other decisions have cited that lyric."
As we have pointed out in the past, our url at Outside Counsel is taken from "Absolutely Sweet Marie", but we have never revealed the back story. In view of the intersection of Dylanology and the Law in today's news now seems the time.
Some years back I was retained as local counsel by a former colleague of A's from her Brooklyn District Attorney days. The case (Freight Drivers, Helpers, Dockmen & Allied Workers Local No. 375 v. Kingsway Transports, Inc. 1992 U.S. Dist. LEXIS 15318) was a labor law dispute which turned on a rather esoteric question of arbital jurisdiction. The employer, who we represented, had initially objected to and reserved the issue of arbitral jurisdiction but still submitted the issue to the arbitrator, and was now seeking de novo review. At one point during oral argument the judge asked why, if our client had thought that the issue was not arbitable, it had gone forward with the hearing. The answer was that the question of arbitability was part of what had been submitted in the arbitration, and that de novo review made sense in that context, "Because," as my lead counsel argued, "as Bob Dylan said, 'To live outside the law you must be honest'." Later he confided that he had been waiting his entire legal career to drop that line into oral argument, and although it did not carry the day, I knew that the moment deserved to be memorialized. (Thanks to Lawyers, Guns and Money for the Liptak cite.)
Per Roberts:
"The absence of any right to the substantive recovery means that respondents cannot benefit from the judgment they seek and thus lack Article III standing," Chief Justice Roberts wrote. " 'When you got nothing, you got nothing to lose.' Bob Dylan, Like a Rolling Stone, on Highway 61 Revisited (Columbia Records 1965)."
Per Liptak:
"What Mr. Dylan actually sings, of course, is, "When you ain’t got nothing, you got nothing to lose." It’s true that many Web sites, including Mr. Dylan’s official one, reproduce the lyric as Chief Justice Roberts does. But a more careful Dylanist might have consulted his iPod.
Liptak continues, "Alex B. Long, a law professor at the University of Tennessee and perhaps the nation’s leading authority on the citation of popular music in judicial opinions, said this was almost certainly the first use of a rock lyric to buttress a legal proposition in a Supreme Court decision. "It’s a landmark opinion," Professor Long said. In the lower courts, according to a study Professor Long published in the Washington & Lee Law Review last year, Mr. Dylan is by far the most cited songwriter. He has been quoted in 26 opinions. Paul Simon is next, with 8 (12 if you count those attributed to Simon & Garfunkel). Bruce Springsteen has 5. But Mr. Dylan has only once before been cited as an authority on Article III standing, which concerns who can bring a lawsuit in federal court. His key contribution to legal discourse has been in another area. 'The correct rule on the necessity of expert testimony has been summarized by Bob Dylan: 'You don’t need a weatherman to know which way the wind blows,' " a California appeals court wrote in 1981, citing "Subterranean Homesick Blues." Eighteen other decisions have cited that lyric."
As we have pointed out in the past, our url at Outside Counsel is taken from "Absolutely Sweet Marie", but we have never revealed the back story. In view of the intersection of Dylanology and the Law in today's news now seems the time.
Some years back I was retained as local counsel by a former colleague of A's from her Brooklyn District Attorney days. The case (Freight Drivers, Helpers, Dockmen & Allied Workers Local No. 375 v. Kingsway Transports, Inc. 1992 U.S. Dist. LEXIS 15318) was a labor law dispute which turned on a rather esoteric question of arbital jurisdiction. The employer, who we represented, had initially objected to and reserved the issue of arbitral jurisdiction but still submitted the issue to the arbitrator, and was now seeking de novo review. At one point during oral argument the judge asked why, if our client had thought that the issue was not arbitable, it had gone forward with the hearing. The answer was that the question of arbitability was part of what had been submitted in the arbitration, and that de novo review made sense in that context, "Because," as my lead counsel argued, "as Bob Dylan said, 'To live outside the law you must be honest'." Later he confided that he had been waiting his entire legal career to drop that line into oral argument, and although it did not carry the day, I knew that the moment deserved to be memorialized. (Thanks to Lawyers, Guns and Money for the Liptak cite.)
// posted by Bill @ 8:46 AM 
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