a public defender


Whose line is it anyway?

Posted on November 27, 2007 by Gideon

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Ever wonder which Supreme Court justice would make it as a stand up comic? Who could successfully start every sentence with: “What’s the deal with…”?

Well, guess no more. The brilliant legal minds at Yale have taken time off from their more intellectual pursuits to bring us the second ever study to analyze the laughter patterns during SCOTUS oral arguments. (Here’s a report on the first.)

It should come as no surprise that the Justice that garnered the most laughs was Justice Scalia.

Justice Scalia continues to lead the Court in getting laughs—fifty-four in all during the seventy-one arguments—with Justice Breyer’s thirty coming in second. Roberts got nineteen laughs during the Term, placing him squarely in third place. Going into the final week of arguments, Justices Ginsburg, Alito, and Thomas were tied for last place with zero laughs, but Ginsburg and Alito both managed to break out of the basement by getting a “(Laughter)” in the waning days of the Term, leaving Thomas, who never says anything audible from the bench, all alone in the cellar.

The study also notices a trend in the reporting, which has started to give us variations on the stolid “Laughter”. Now we are allowed the visual beauty of “some laughter” and “a little laughter”.

Speaking of Justice Scalia, Scott will be over the moon when he hears that The Nino is in the process of writing a book. Don’t expect “1001 Jokes You Can Tell at Oral Argument”, though. This is going to be a book dedicated to telling lawyers how to practice and argue in the Supreme Court. A “how-to”.

But Scalia’s probably won’t be a chart-topper — except among lawyers. Without fanfare or publicity, Scalia and Bryan Garner, the legal writing guru, have joined to co-author a book on the art of persuading judges, both orally and in written briefs.

Even though the irrepressible Scalia sometimes irritates rather than persuades the eight judges he happens to work with, the book seems destined to be a must-read for lawyers whose work brings them into courts. As Scalia is often viewed as the Court’s best and most entertaining writer, his participation in the project is sure to invite comparison with a guidebook on ballet by Baryshnikov or on golf by Tiger Woods.

“Justice Scalia is a very serious student of advocacy,” says Garner, whose Dallas-based LawProse Inc. runs extensive CLE training for lawyers on writing. “The idea is that we can make an important contribution to legal literature… and discuss basic principles of argumentation, rhetoric, and judicial persuasion.”

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1 Comment »

Comment by Alec
2007-11-28 15:48:25

No surprise. One of my favorite lines (which also reveals what a bastard he is) comes from this footnote in Kyllo v. United States:

“The dissent asserts, post, at 5, n. 3, that we have misunderstood its point, which is not that inference insulates a search, but that inference alone is not a search. If we misunderstood the point, it was only in a good-faith effort to render the point germane to the case at hand.”

At least he’s a funny sarcastic bastard.

 
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