Somehow, I suspect that no working lawyer lost sleep over this aspect of 7th Circuit Judge Richard Posner’s decision in United States v. Black. Not that the scheme to defraud case or the “no harm-ho foul” defense isn’t interesting, though not earth-shattering, but that isn’t why the case is notable now.
In the course of his decision, Judge Posner wrote:
Three more issues need to be discussed. The first is whether an “ostrich” instruction should have been given. The reference of course is to the legend that ostriches when frightened bury their head in the sand. It is pure legend and a canard on a very distinguished bird. Zoological Society of San Diego, Birds: Ostrich, www.sandiegozoo.org/animalbytes/t-ostrich.html (visited June 12, 2008) (“When an ostrich senses danger and cannot run away, it flops to the ground and remains still, with its head and neck flat on the ground in front of it. Because the head and neck are lightly colored, they blend in with the color of the soil. From a distance, it just looks like the ostrich has buried its head in the sand, because only the body is visible”). It is too late, however, to correct this injustice.
Slip op at 12. Aside from an appreciation of Judge Posner’s writing style, Howard Bashman had a little fun with this paragraph, noting:
And while we are debunking canards (which, by contrast, are birds that can fly), allow me to question the use of the singular “head” in the following sentence from Judge Posner’s opinion: “The reference of course is to the legend that ostriches when frightened bury their head in the sand.”
Judge Posner, with similar humor, responded to Howard’s nit:
Dear Prof. Bashman, to say “ostriches hide their heads in the sand” would imply that each ostrich had more than one head.Richard Posner
P.S. And yes, canards fly–glad you caught the pun.
Now this is all pretty funny, or perhaps cute would be a better description, over the critical question of whether ostriches hide their head or heads, meaning that multiples ostriches share a single head or individual ostriches have more than one. Since I enjoy language (and puns), this was the sort of “inside joke” that I appreciated Bashman sharing.
But, as with so many pressing scholarly questions, some professor actually took up arms following this exchange. University of Pennsylvania linguistics professor Mark Lieberman actually wrote “more than 1600 words” in a post at Language Log scrutinizing precedent to determine whether Bashman or Judge Posner was correct.
Another pressing issue facing society resolved by a scholar. You can’t make this stuff up.
And, lest I leave you hanging, Conrad Black’s conviction would not have been reversed had Judge Posner chosen the plural rather than singular.
Update: As if not to be ignored on issues of great substance, Liptak chimes in at the Times by noting that Chief Justice Roberts, unlike his predecessor, the very model of a modern chief justice, quotes Dylan (Bob, not Thomas) in an otherwise unmemorable dissent.
“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).”
The dawn of a new age? But not good enough to satisfy the journalist in Liptak, who strains to note:
On the other hand, Chief Justice Roberts gets the citation wrong, proving that he is neither an originalist nor a strict constructionist. What Mr. Dylan actually sings, of course, is, “When you ain’t got nothing, you got nothing to lose.”
The larger objection is that the citation is not true to the original point Mr. Dylan was making, which was about the freedom that having nothing conveys and not about who may sue a phone company. (See, e.g., “Me and Bobby McGee.”)
To paraphrase Kris Kristofferson, freedom is just another word for nothing left to write about. And we can’t forget Janis.
A similar broo-ha-ha once arose from Judge Joseph F. Weis Jr.’s use of “flaunt” instead of “flout” in a court opinion. Bill Safire called the Judge out on his word choice, and the Judge mounted a spirited defense. A good recitation of the story can be found at http://judiphilly.blogspot.com/2006/07/flaunt-v-flout-redux.html
[Edit. Note: Why do you do this to me? Does no one notice that I do not allow links in comment? Am I talking to myself? Yet, your link is to a great post, which I’m leaving in against my better judgment because it’s another great example. But I’m begging you, don’t do it. Please? Aarrgghh.]
Sorry, Scott. I was aware of your policy but also thought the link was too good to omit. Next time, I’ll try not to “flaunt” the no-link policy! 😉
Attorneys and Ostriches: Beware the Wrath of Judge Posner
You may have noticed that we’re slightly obsessed with Seventh Circuit Court of Appeals Judge Richard Posner. He’s our law crush because he always writes interesting opinions. We’re not naive: We know that behind every witty judge is a fleet…
Judge Posner says, “It is too late, however, to correct this injustice.” That is an interesting thing to say when arguing that one should always recognize precedent. What if the precedent is wrong? Is it still efficient to cite and follow precedent?
The attorney in this case said that he thought that Judge Posner did not read his brief. If so, that would not be the first time.
In BCBS v Marshfield Clinic (152 F. 3d 588 (7th Cir. 1998)) Posner wrote an opinion that was filled with factual errors. For example, he stated that one expert calculated damages from 1988-1995; that is factually incorrect. The expert used 1988 as a benchmark, thus no damages were calculated in 1988. Posner was also incorrect that the expert was precluded from doing a before-and-after analysis and should have used a ‘yardstick’ instead. What Posner failed to realize, was that the expert used a difference-in-difference (DID) regression analysis; the before-and-after, and yardstick approaches are both special cases of the (DID). The most blatant factual error results from his incomplete reading of the record when he concludes that the expert did not control for legal factors. That is a factually incorrect conclusion. Yet Posner’s opinion on this point has been subsequently cited in 16 federal cases (including his own citations).
These simple, but strategically important errors would have been caught if a clerk had proof-read the opinion and checked against the expert reports he was referring to. If the clerk was checking against the opinions of the district court judge, then they completely missed the purposed of the appeal, because the district court made those same mistakes.
Judge Posner made other errors but ones based on economic theory that would not be picked up through a simple fact checking process. For example, he treated the demand for physician services just any other commodity such as tires, with a downward sloping demand. In such cases, market power would be exercised by contracting output and thus elevating prices. In his BCBS opinion he even provided a simple numerical example. Judge Posner did not bother to inform himself of the relevant literature that focuses on the distinguishing features of health care which were the focus of this matter. There are instances, this case being one, where market power can be exercised by **increasing output**. Judge Posner, choose to ignore this point.
Interestingly, in a related case Rozema v Marshfield Clinic (977 F. Supp. 1362 (W.D. Wis. 1997)), the same district court judge has a second shot on these issues and concluded that “the evidence showed an increase in both price and output, the existence of which demonstrates that conventional economic principles do not control.” The Rozema opinion was written on Oct 2, 1997 prior to Judge Posner’s (152 F. 3d 588) opinion. While the Rozema opinion is not part of the BCBS record it does indicate the insights that can be gained by reading the record.