Lawsuit, shmawsuit.

• Author: Kozinski, Alex

Searching the MEGA file in LEXIS reveals that "chutzpah" (sometimes also spelled "chutzpa," "hutzpah," or "hutzpah"(1)) has appeared in 112 reported cases. Curiously, all but eleven of them have been filed since 1980. There are two possible explanations for this. One is that during the last thirteen years there has been a dramatic increase in the actual amount of chutzpah in the United States--or at least in the U.S. legal system. This explanation seems possible, but unlikely.

The more likely explanations is that Yiddish is quickly supplanting Latin as the spice in American legal argot. As recently as 1970, the Second Circuit not only felt the need to define "bagels"; it misdefined them, calling them "hard rolls shaped like doughnuts."(2) All right-thinking people know good bagels are rather soft.(3) We've come a long way since then. The first reported use of "chutzpah" was in 1972, in an opinion of the Georgia Court of Appeals.(4) We're happy to say it was quite apt: breaking into a sheriff's office to steal guns qualifies as chutzpah in our book. The four times "chutzpah" was used in published opinions in 1973, the courts didn't even bother to give a definition.(5) And, as we said, it's been used over a hundred times since 1980. During the same period, the word "temerity" (a woefully inadequate substitute) was used only about two hundred times, and "unmitigated gall" a mere ten.

Other Yiddish words have had tougher sledding. Variations on "kibitz" have appeared in ten cases,(6) "maven" in four,(7) "klutz" in three.(8) "Schlemiel" (also spelled "shlemiel") comes up five times, but one is in a quote from testimony, which doesn't count, one is in the name of a book and two are descriptions of Woody Allen's screen persona.(9) The only bona fide use was, believe it or not, in another Georgia opinion (and not by the same judge, either).(10) "Schlimazel" is nowhere to be seen, even when spelled as "schlimazl," "shlimazel," "shlimazl," "schlemazl," "shlemazel," "schlemazel," or "shlemazl." "Schmooze" appears only once, in--you guessed it--a Georgia cases.(11) Unfortunately, the judiciary of that great state stumbled this time, both misusing the word and misspelling it as "schmoose." We concede that Webster's permits this spelling,(12) but what do they know from Yiddish?(13)

There is, of course, one obvious question that must be on every reader's mind at this juncture: what about "schmuck"? Regrettably, we were stymied in our schmuck search by the fact that many people are actually named Schmuck.(14) This is an unfortunate circumstance for researchers (and even worse for the poor Schmucks themselves). We therefore can't report on the degree to which schmuck has worked its way into legal English, which is too bad, because schmuck are even more common in courtrooms than schlemiels, schmoozing, and chutzpah. We can, however, mention that there's a U.S. Supreme Court case named Schmuck v. United States.(15) For what it's worth, the petitioner was a used-car dealer.(16) And there's also People v. Arno,(17) where the first letters of each sentence in a footnote spell out "schmuck" (apparently referring to the dissent). Harsh.(18)

Just as we can't get much joy when a court uses "schmuck" to refer to a person named Schmuck, we also aren't very excited when it uses "kosher" to describe a deli or a piece of chicken. That "kosher" appear over 800 times in LEXIS is therefore not particularly impressive. But it's clear that "kosher" is used figuratively in quite a few cases, from United States v. Erwin's insistence that the law "tell the felon point blank that weapons are not kosher"(19) to Texas...