Notice & Comment

D.C. Circuit Review – Reviewed: “Vincent Gambini Taught a Master Class in Cross-Examination.”

This week, Chief Judge Garland did something unusual, at least for him. He seasoned one of his decisions with a pop culture reference. I suspect he has done it before. (I’m certain he has if one counts Lewis Carroll as pop culture, though I suspect most folks do not.) But I can’t remember any off the top of my head. If you know of such an opinion, please list it in the comments. It isn’t an easy Westlaw search to run.

In particular, in Novato Healthcare Center v. NLRB, Chief Judge Garland (joined by Judges Griffith and Edwards) denied a healthcare company’s petition for review because the NLRB had substantial evidence to conclude that the company committed unfair labor practices. In so doing, he opened his opinion this way:

That’s an unusual way to start an opinion — who in the world is Vincent Gambini? So look at footnote 1:

It seems that in Novato, the administrative trial turned on the testimony of a supervisor who photographed certain employees asleep on the job. But was the timing accurate? Here is Chief Judge Garland’s analysis:

And what does footnote 5 say?

In Novato, there was a similar question: “The problem with this timeline is the sheer number of tasks Gilman claimed to have completed between stopping at the stop sign at 3:50 a.m. and arriving at Station 4 just 5 to 10 minutes later.”

The Court’s opinion is fun to read. Even so, courts should use pop culture with caution. That is especially true for the Supreme Court, where opinions have a very long shelf life. But in all courts, judges must be careful not to trivialize cases. Pop culture has a place on Twitter, sure,* but a judicial decision is different.

Here, Chief Judge Garland — a talented writer — was able to pull it off. He backed up the reference with enough explanation to demonstrate why the reference was applicable. But that isn’t easy to do. Judges would do well to proceed with caution before trying. Perhaps there is a place for, say, Billy Madison in a particular court decision. But boy, be careful.

To illustrate how hard it is to pull off a pop culture reference, this week I decided to do something different. I’ve scribbled my own first paragraph to each opinion, complete with a pop culture reference, and then combined my new opening with the opinion’s real first paragraph. I think you’ll quickly see why such references are tricky.

Let’s begin with Siegel v. Administrator of the FAA:

I don’t think adding the reference would hurt the opinion. But it certainly wouldn’t help it.

It gets even harder when a case’s facts are not conducive to pop culture. Consider Jane Doe 2 v. Shanahan, which we have seen before, and which concerns the military’s transgender policy. Both Judges Wilkins and Williams today filed separate opinions to explain their votes. Here is what a modified version of their respective openings might look like:

Cultural references do nothing here — and if anything, they cheapen the analysis. Indeed, it would have been very hard to find a pop culture reference for either of their opinions. The ones I came up with are no good, and I don’t think “Hail to the Chief” even counts as pop culture anyway.

Finally, consider United States v. Kelsey. I confess; I couldn’t think of a reference, pop culture or otherwise, and I didn’t even want to try. The best I could come up with was a section from The Brothers Karamazov, and, frankly, it felt ugly. So for Kelsey, I’ll let Judge Pillard’s actual opening speak for itself:

My conclusion: Pop culture sometimes may be used appropriately in judicial opinions. But be careful.

Enjoy your weekend.

UPDATE (a few minutes after posting): Via Twitter, I learned about a 2014 pop culture reference from Chief Judge Garland:

* On the subject of pop cultural references on Twitter ….

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