In his dissent in Husain v. Springer, 04-5250 (2nd Cir., July 13, 2007) (covered at DotD here), Judge Dennis Jacobs of the Second Circuit explains why the majority should not have taken the free speech claims of a student newspaper seriously. Here are choice tidbits from Judge Jacobs:
- I concede that this short opinion of mine does not consider or take into account the majority opinion. So I should disclose at the outset that I have not read it.
- But this is not a case that should occupy the mind of a person who has anything consequential to do.
- The gist of the complaint is that the editors’ speech was chilled, which is deemed to be a bad thing. [Even if you disagree with the notion of chilled speech, one probably understand why it is a big issue.]
- Now, after years of litigation over two dollars, the majority will impose on a busy judge to conduct a trial on this silly thing, and require a panel of jurors to set aside their more important duties of family and business in order to decide it. [It isn’t silly to the plaintiffs, who think their rights were violated. Besides, jury trials are usually over things that seem silly to the uninvolved. Like whether poor people should die in jail or not.]
- Contrary to the impression created by the majority’s lengthy formal opinion, this case is not a cause célèbre; it is a slow-motion tantrum by children spending their graduate years trying to humiliate the school that conferred on them a costly education from which they evidently derived small benefit. [That is for the jury to decide. And, since you never had your opinions stifled, Judge, I don’t think you would understand.]
- On the merits, I would affirm for the reasons given in Judge Gershon’s careful and thorough opinion (which I have read). [Really?]
- If this case ends with a verdict for plaintiffs (anything is possible with a jury), the district court will have the opportunity to consider whether the exercise merits an award of attorneys’ fees in excess of one-third of two dollars. [Does he really think that low of juries? I guess he does. After all, they lack his education and manners. Of course, "anything is possible" with judges, too.]
So, is this the kind of opinion that constitutes good legal writing? Is this what law schools teach people to write?
Beldarblog (predictably) defends the practice of not taking the arguments of the litigants and fellow judges seriously here. I wonder if he would feel the same way if his paying clients were told by a court that their gripes, were just not worth of being heard by a court because of who they were.