MCA filed a counterclaim for defamation based on the Mattel representative’s use of the words ‘bank robber’, 'heist’, 'crime’ and 'theft’. But all of these are variants of the invective most often hurled at accused infringers, namely 'piracy’. No one hearing this accusation understands intellectual property owners to be saying that infringers are nautical cutthroats with eyepatches and peg legs who board galleons to plunder cargo. In context, all these terms are nonactionable 'rhetorical hyperbole’. The parties are advised to chill.

Justice Kozinski, United States Court of Appeals 9th Circuit, in Mattel v MCA Records 296 F.3d 894 (9th Cir. 2002).

(via #sh-tjudgessay)

His Honour began the judgment with the following introduction:

“If this were a sci-fi melodrama, it might be called Speech-Zilla meets Trademark Kong.”

It is popular in some circles to suppose that judicial decision making can be explained largely by frivolous factors, perhaps for example the relationship between what judges eat and what they decide. Answering questions about such relationships is quite simple - it is like being asked to write a scholarly essay on the snakes of Ireland: There are none.
—  Alex Kozinski, “What I Ate for Breakfast and Other Myteries of Judicial Decision Making”
Saints may always tell the truth, but for mortals living means lying. We lie to protect our privacy (“No, I don’t live around here”); to avoid hurt feelings (“Friday is my study night”); to make others feel better (“Gee you’ve gotten skinny”); to avoid recriminations (“I only lost $10 at poker”); to prevent grief (“The doc says you’re getting better”); to maintain domestic tranquility (“She’s just a friend”); to avoid social stigma (“I just haven’t met the right woman”); for career advancement (“I’m sooo lucky to have a smart boss like you”); to avoid being lonely (“I love opera”); to eliminate a rival (“He has a boyfriend”); to achieve an objective (“But I love you so much”); to defeat an objective (“I’m allergic to latex”); to make an exit (“It’s not you, it’s me”); to delay the inevitable (“The check is in the mail”); to communicate displeasure (“There’s nothing wrong”); to get someone off your back (“I’ll call you about lunch”); to escape a nudnik (“My mother’s on the other line”); to namedrop (“We go way back”); to set up a surprise party (“I need help moving the piano”); to buy time (“I’m on my way”); to keep up appearances (“We’re not talking divorce”); to avoid taking out the trash (“My back hurts”); to duck an obligation (“I’ve got a headache”); to maintain a public image (“I go to church every Sunday”); to make a point (“Ich bin ein Berliner”); to save face (“I had too much to drink”); to humor (“Correct as usual, King Friday”); to avoid embarrassment (“That wasn’t me”); to curry favor (“I’ve read all your books”); to get a clerkship (“You’re the greatest living jurist”); to save a dollar (“I gave at the office”); or to maintain innocence (“There are eight tiny reindeer on the rooftop”).
—  Ninth Circuit judge Alex Kozinski, United States v. Alvarez. The whole concurrence is worth a read.
Judges must apply the law as written, not as their instincts tell them Congress probably meant it. Language, when properly interpreted and literally applied, provides a meaningful constraint on judicial action; when we allow ourselves to be guided by intuition that Congress didn’t really mean what it said, we are no longer interpreting laws, we are making them.
—  United States v. Phelps, 895 F.2d 1281 (9th Cir. 1990) abrogated by Smith v. United States, 508 U.S. 223, 113 S. Ct. 2050, 124 L. Ed. 2d 138 (1993)

197/365: CHUTZPAH
shameless audacity; impudence.

Interesting tidbit: Judge Alex Kozinski and Eugene Volokh in an article entitled Lawsuit Shmawsuit, note the rise in use of Yiddish words in legal opinion. They note that chutzpah has been used 231 times in American legal opinions, 220 of those after 1980.

#365vocabulettering #type #typography #lettering #handlettering #typographie #thedailytype #typedaily #typespire #typegang #goodtype #design #art #illustration #thedesigntip #handmadefont #ligaturecollective #vocabulary #handdrawn #slowroastedco #calligritype #vocabulary #typematters #todaystype #brushtype #chutzpah #pencilsketch #blackwing #wordoftheday

Judge Kozinski on Myths of Fairness in the Criminal Justice System and Consequences for the Innocent

Judge Kozinski on Myths of Fairness in the Criminal Justice System and Consequences for the Innocent

An edited version of Judge Alex Kozinski’s article “Criminal Law 2.0” appeared in Quartz last Friday outlining myths about the fairness of the U.S. criminal justice system. Chief Judge Kozinski has served on the U.S. Ninth Circuit Court of Appeals since 1985.  Judge Kozinski talked about his article and his recommendations for improving the system last Friday as part of a discussion hosted by the…

View On WordPress

New Post has been published on Greenspun Shapiro PC

Why Should We Worry About Our Criminal Justice System?



In this article, Eugene Volokh summarizes an article by Judge Alex Kozinski, a conservative federal judge in the U.S. court of Appeals for the Ninth Circuit, about problems with today’s criminal justice system. It is interesting because the 12 points Volokh makes have to do with our preconceived …

Greenspun Shapiro PC

There is something creepy and un-American about such clandestine and underhanded behavior. To those of us who have lived under a totalitarian regime, there is an eerie feeling of déjà vu. This case, if any, deserves the comprehensive, mature and diverse consideration that an en banc panel can provide. We are taking a giant leap into the unknown, and the consequences for ourselves and our children may be dire and irreversible. Some day, soon, we may wake up and find we’re living in Oceania.

United States v. Pineda-Moreno

617 F.3d 1120 (9th Cir. 2010)

The Obergefell Decision & the Triumph of the Therapeutic

The Obergefell Decision & the Triumph of the Therapeutic

By Thaddeus Kozinski “Religious man was born to be saved, psychological man is born to be pleased.” “The rules of health indicate activity; psychological man The post The Obergefell Decision & the Triumph of the Therapeutic appeared first on The Imaginative Conservative. Originally published at : The Imaginative Conservative

View On WordPress

Judge Alex Kozinski and Barry Scheck Discuss Criminal Justice Reform at Cardozo Law School

Judge Alex Kozinski and Barry Scheck Discuss Criminal Justice Reform at Cardozo Law School

This summer, Chief Judge Alex Kozinski of the U.S. Ninth Circuit Court of Appeals received national attention for a new article he wrote entitled “Criminal Law 2.0,” that was published in the Georgetown Law Journal. In the piece, he outlines reasons why the country’s criminal justice system needs speedy and comprehensive reform. On Friday, at a talk hosted by the Innocence Project and the Jacob…

View On WordPress

[H]ere, for example, the Supreme Court waxed eloquent on the impressive qualifications of plaintiffs’ experts. Yet something doesn’t become “scientific knowledge” just because it’s uttered by a scientist; nor can an expert’s self-serving assertion that his conclusions were “derived by the scientific method” be deemed conclusive, else the Supreme Court’s opinion could have ended with footnote two.

Our responsibility, then, unless we badly misread the Supreme Court’s opinion, is to resolve disputes among respected, well-credentialed scientists about matters squarely within their expertise, in areas where there is no scientific consensus as to what is and what is not “good science,” and occasionally to reject such expert testimony because it was not “derived by the scientific method.” Mindful of our position in the hierarchy of the federal judiciary, we take a deep breath and proceed with this heady task.


Daubert v. Merrell Dow Pharmaceuticals, Inc., 

43 F.3d 1311