Sign In
    Wisconsin Lawyer
    January 11, 2021

    The [Cite] Goes On: Citations to Pop Music in Wisconsin Case Law

    One way for jurists to strike a chord with readers is to refer to resources that are familiar to the public, not only to legal professionals. Here are examples of citations to popular music in Wisconsin state and federal opinions.

    Chad Baruch & Hon. Mark Wayne Klingensmith

    elderly man rocking out

    Judicial citations to music lyrics are nothing new.1 But in the past 20 years, the frequency of such citations – particularly to “classic rock” – has grown dramatically. Even the U.S. Supreme Court has gotten into the act. In a 2008 dissent, Chief Justice Roberts supported his conclusion that a litigant lacked standing by citing Bob Dylan: “When you got nothing, you got nothing to lose.”2 Similarly, Justice Kagan slid a reference to a 1980s hit into one of her opinions by listing a hypothetical telephone number as “867-5309.”3

    A 2007 survey confirmed that references to popular music lyrics have become increasingly common both in judicial opinions and scholarly legal articles.4 This isn’t surprising. “Popular music, in its many forms, covers the spectrum of human emotions and situations.”5

    According to the survey, the 10 artists cited most frequently were the following:

    1. Bob Dylan
    2. The Beatles
    3. Bruce Springsteen
    4. Paul Simon
    5. Woody Guthrie
    6. Rolling Stones
    7. Grateful Dead
    8. Simon & Garfunkel
    9. Joni Mitchell
    10. R.E.M.

    Johnny Cash, Pink Floyd, and Billy Joel barely missed the cut.6

    Several things about this list are striking. First, Elvis Presley – the “King of Rock and Roll” – was conspicuously absent. Second, Joni Mitchell was the only woman. Third, with the exception of R.E.M., every artist on the list fell into either the classic rock or folk category; there were no country artists. And finally, no artists of color appeared on the list.

    But this is a national list, and it includes scholarly citations as well as citations in judicial opinions. What about Wisconsin? This article chronicles some of the citations to popular music in Wisconsin state and federal judicial opinions.7

    Judicial Citation of Rock Lyrics in Wisconsin

    Would you believe in a love at first [cite]?8 Wisconsin opinions contain citations to several artists on the national list. Although the Rolling Stones, the Grateful Dead, Woody Guthrie, Joni Mitchell, and R.E.M. do not appear to be cited in any Wisconsin opinions, the remaining artists – Dylan, Springsteen, the Beatles, and Simon & Garfunkel – all have been cited by Wisconsin judges.

    Chad BaruchChad Baruch, Minnesota 1991, is an appellate attorney with Johnston Tobey Baruch in Addison, Texas. He grew up in Stevens Point and is admitted to practice in Wisconsin.

    Mark W. KlingensmithHon. Mark W. Klingensmith, Levin College of Law 1986, serves on the Fourth District Court of Appeal in Florida and is the author of Lyrics in the Law: Music’s Influence on America’s Courts (2020).

    As in most states, citations to Dylan lead the way. As far back as 1975, Wisconsin Supreme Court justice Robert Hansen cited Dylan in characterizing a majority opinion as holding that: “The times, they are a-changing….”9 Justice David Prosser cited an oft-used rock lyric by pointing to Bob Dylan’s famous statement that: “You don’t need a weatherman to tell you which way the wind blows.”10

    While serving on the Seventh Circuit, Judge Terence Evans noted that 99 years is the “standard lyrical shorthand for an unimaginably long sentence” and for support pointed to songs by Dylan, Springsteen, Cash, and others.11

    In a criminal case involving whether an interrogation occurred during custodial detention, then Chief Justice Richard Brown of the Wisconsin Court of Appeals invoked a song by the Beatles:

    “We fully agree. At that point, there could be no doubt that Lanser was not free to leave. But, as we have already stated, by the time the deputy had decided to have field sobriety tests conducted, ‘this bird had flown,’ as the Beatlesonce sang in Norwegian Wood.”12

    Justice Prosser resorted to music lyrics again in discussing the potent remedies available to Wisconsin consumers suing automobile manufacturers. This time, he cited country crooner Kenny Rogers in noting that manufacturers must “weigh very carefully when ‘to hold ‘em and when to fold ‘em.’”13 And, in a criminal case, Justice Prosser cited the song 911 is a Joke by rap group Public Enemy in explaining that “[t]he emergency number 911 has become ingrained in our popular culture.”14

    In a criminal case, former Chief Justice Brown referred to a popular song by Dire Straits in concluding that: “The State received money for nothing.”15\

    Justice Shirley Abrahamson was another recidivist lyric citer. In discussing textual interpretation, Justice Abrahamson cited Sarah Vaughn for the proposition that “[s]ometimes, ‘no other words can tell it half so clearly’ as an entire phrase.”16 And, in a somewhat quirky reference, she noted that: “Society’s perception of short people is put to music in Randy Newman’s hit song ‘Short People.’”17

    Perhaps one of the most humorous references to popular music came in a 2008 bankruptcy decision. Judge Susan Kelley praised the reasoning of one of her colleagues in a prior decision – but lamented his music recommendation:

    As in most states, citations to Dylan lead the way [in Wisconsin].

    “In his otherwise well-reasoned opinion, In re Look, Judge Haines quoted Tim Buckley’s Starsailor album. In search of inspiration and curious about this artist and the song, I found a short clip and listened. I do not recommend this to others. The corresponding online review called the album ‘his most extreme artistic statement, a cacophonous fusion of progressive jazz and avant-garde idioms with few comfortable moments. Buckley stretches the limits of his phenomenal vocal range to its limits, shrieking and moaning like a soul truly possessed.’ I was immediately required to listen to the entire ‘Bridge Over Troubled Water’ album to recover.”18

    And, finally, though not a lyric citation, bankruptcy judge Thomas Utschig cited Frank Zappa’s observation that “[c]ommunism doesn’t work because people like to own stuff.”19

    So, in the end, Wisconsin might not have quite the volume of some other states when it comes to judicial citations of popular music. But it has some of the most clever and humorous instances of such citations. And, as the Wisconsin judiciary becomes more diverse and populated with judges who grew up in the late 1980s and 1990s, we can only expect more of these types of citations. Until then, and with apologies to REO Speedwagon: Keep Citin’.20

    Cite to 94. Wis. Law. 30-32 (January 2021).

    Meet Our Contributors

    What was your funniest or oddest experience in a legal context?

    Chad BaruchI argued a case in the Fifth Circuit the morning that Tropical Storm Barry slammed into New Orleans. My co-counsel and I slogged through two blocks of three-foot-high floodwaters (in a torrential downpour) to reach the courthouse. In what could only be the result of divine intervention, we made it.

    Drenched and disheveled, I threw open the front door. The deputy marshal on duty made a clearly perceptible move toward his weapon when he saw us. Thankfully – no doubt drawing on his years of law enforcement experience – he immediately concluded that we were not terrorists but just garden-variety idiots. Doing their best to keep a straight face, the deputies cleared us through security and directed us to the men’s restroom. Upon entering it, we began the task of disrobing, drying off, and dressing for court.

    Just as our counsel team was stripped down to our underwear – and that really was a blessing, because only moments before I had been Full Monty – a gentleman opened the door of the restroom and began to walk inside. The first thing he saw was the three of us, standing nearly nude together in the middle of the
    restroom. He froze, regarding us with a mixture of puzzlement and horror. My co-counsel looked up and said quietly: “We’re a very close group.” The fellow replied, “I think I will use the next one.”

    Just another day in the appellate world.

    Chad Baruch, Johnston Tobey Baruch, Addison, Texas.

    What was your funniest or oddest experience in a legal setting?

    Mark W. KlingensmithMany years ago when I was a young lawyer, our circuit had a judge who was not known for his sense of humor. As was the custom, each day in his division the day began with a motion calendar that was held in his courtroom. Rather than waiting in the hall for their hearing to be called, the attorneys would typically sit in the courtroom chatting with one another while anticipating the judge’s arrival. As a result, the courtroom was typically filled with about 50 or more lawyers each morning before court started.

    As I recall, there were at least that many in the courtroom on this particular day, maybe more, which caused this medium-sized courtroom to be pretty full. The bailiff announced, “all rise,” and the judge came into the courtroom to take his seat on the bench. So far, a typical beginning to a morning motion calendar.

    Apparently, the judge’s chair up at the bench had one of those plastic floor protectors that makes the chair easy to slide around on. On this day, when the judge sat on the chair, he must have sat more on the front edge of the seat because the chair began to slide out from under him. To keep from falling on his keister in front of a room full of lawyers, he attempted to keep his balance and stop from falling by grabbing onto a bookshelf that was up at the bench behind him. He failed miserably. Not only did he land smack dab on his you-know-what, he also succeeded in pulling the entire bookshelf over on top of him.

    When this happened there was about 10 seconds of stunned silence in the courtroom, leaving a room full of attorneys speechless over what they had seen, and no one really knowing what to do next. That is, until the silence was broken by someone in the back of the room who quipped (loud enough for everyone to hear), “Live from New York, it’s Saturday night!”

    With that, the entire room burst out in laughter, with most of those present quickly leaving the courtroom before the judge (who as I said had no sense of humor) could get up from under the bookshelf and a pile of books to see who was doing the laughing (and more importantly, find out who it was that made the remark).

    Over 30 years have passed since then, and to my knowledge, no one has fessed up to being the wise guy. And no, the judge was not hurt – except for his bruised ego.

    Hon. Mark W. Klingensmith, Fourth District Court of Appeal, Florida.

    Become a contributor! Are you working on an interesting case? Have a practice tip to share? There are several ways to contribute to Wisconsin Lawyer. To discuss a topic idea, contact Managing Editor Karlé Lester at (800) 444-9404, ext. 6127, or email klester@wisbar.org. Check out our writing and submission guidelines.




News & Pubs Search

-
Format: MM/DD/YYYY