The freewheelin' judiciary: a Bob Dylan anthology.

• Author: Long, Alex B.
• Position: Bob Dylan and the Law

Introduction I. Why Dylan? II. A Dylan Legal Anthology A. Percy's Song B. "You Don't Need a Weatherman to Know Which Way the Wind Blows". 1. Of Weathermen, Expert Witnesses, and Obvious Conclusions 2. Of Weathermen and the Role of Judges C. "When You Ain't Got Nothin', You Got Nothin' to Lose" D. "It Ain't Me, Babe". E. You're Gonna Have to Serve Somebody F. The Times They are A-Changin' G. Ballad of a Thin Man H. Blowin ' in the Wind I. Of Pig Circuses and Children's Faces Conclusion INTRODUCTION

In a 2008 decision, Chief Justice John Roberts of the Supreme Court of the United States made history by citing--for the first time in the history of the Court--the lyrics of Bob Dylan in a published opinion. (1) Sprint Communications Co. v. APCC Services, Inc. involved the somewhat dry issue of whether the billing and collection firms used by payphone operators had legal standing to bring suit on behalf of the payphone operators. (2) In dissenting from the majority opinion finding that the firms had standing, Chief Justice Roberts noted that the payphone operators had assigned their legal claims against long-distance carriers to the firms because the firms were willing "to assume the obligation of remitting any recovery to the ... payphone operators." (3) However, the firms never had any share in the amount that they collected. (4) Therefore, Roberts argued, because the operators had no right to substantive recovery, they could not benefit from the judgment and thus lacked standing. (5) Chief Justice Roberts did not cite any prior opinion of the Court in support of his argument, nor did he cite any legal treatise. Instead, he relied upon the lyrics of Bob Dylan (and misquoted them slightly): "When you got nothing, you got nothing to lose." (6)

Not only was this the first time that the lyrics of Bob Dylan found their way into a Supreme Court opinion, but it also was quite likely the first time that the lyrics of any musician who could realistically be described as a "pop" artist were ever used in a Supreme Court opinion to advance a legal argument. (7) Although the names of numerous musicians have made their way into the Supreme Court reporter, before Sprint Communications Co., none had seen his or her lyrics cited to advance a legal argument. (8)

Two years later, Justice Antonin Scalia made history for a second time by quoting Dylan. In City of Ontario v. Quon, the Court declined to decide whether a public employee had a reasonable expectation of privacy in text messages he had sent that had been searched by the employer. (9) Part of the Court's justification for refusing to decide the issue was its fear that technology and societal attitudes regarding technology were advancing so rapidly that it was unwise to articulate a bright-line rule regarding text messages. (10) The Court's refusal prompted a stinging response from Justice Scalia, who complained that the Court had shirked its duty to decide legal issues and that "[t]he-times-they-are-a-changin' is a feeble excuse for disregard of duty." (11) Interestingly, Scalia failed to cite Dylan as the author of the line, presumably because he assumed the line was so well known as to need no attribution.

Judges at all levels in the United States judicial system have cited Bob Dylan far more often than any other popular music artist. (12) The logical question then becomes, "why?" Why is Dylan (rather than John Lennon, Woody Guthrie, or some other prominent and socially-conscious songwriter) the preferred songwriter for judges, and why do judges feel the need to cite Dylan's lyrics to begin with? What are they hoping to convey to the reader about the legal issue at hand, the legal system in general, or about themselves that causes them to rely on the works of Dylan? What type of connection are they trying to make with the reader, and why are Dylan's lyrics the preferred vehicle? Others have written about Dylan's perceptions of the legal system as expressed in his lyrics and what these lyrics say about the United States legal system. (13) A different focus, however--one that explores the question of what these judges are trying to communicate through their use of Dylan's lyrics--may also yield interesting conclusions.

An examination of the imagery developed by Dylan through his lyrics and the imagery judges hope to develop in their opinions through the use of Dylan's lyrics may help answer some of those questions. In some instances, the use of Dylan's lyrics seems consistent with the judicial process in that the lyrics are used in an attempt to clarify or explain (in a more colorful or thought-provoking manner) a potentially difficult-to-explain idea or legal concept. In other instances, the use of lyrics appears to do little to strengthen a legal argument or clarify a point for a reader. Instead, the judge's inclusion of Dylan's lyrics is arguably as much an attempt at self-expression--a means of establishing who this judge is as an individual--as it is an attempt to communicate a deeper meaning.

1. WHY DYLAN?

   By nature, lawyers and judges are storytellers. (14) Every client has a story to tell, and it is part of the lawyer's job to present a client's story in a manner that makes it more likely that the client will achieve his or her objectives. (I5) Legal rules have no power without a set of facts with which to connect, so it is part of the lawyer's job to present facts to the judge or jury in a manner that makes the desired application of the law to the facts seem inevitable. (16) Narratives are a particularly persuasive tool in this regard given their ability to help judges and jurors find common ground and understand the experience of a client. (17) Lawyers are taught from their first year of law school to develop a compelling narrative when presenting a client's case to a jury and in their writing to enable the fact-finder to understand a client's behavior and see the desired connection between rule and law. Indeed, one author has concluded that it may not be possible to talk about case law, statutes, and constitutional provisions "without telling stories about them." (18)

   Judges need to tell stories too, if for no other reason than that they are constrained by the reality that their decisions concerning the law must be tied directly to a given set of facts. But judges also want their opinions to be persuasive. They want other judges and lawyers to accept the force of their logic. (19) Thus, the judge must present the story in a way that helps the reader see his view of the connection between the law and the facts. (20) To accomplish this goal, judges sometimes rely on a variety of narrative devices, including foreshadowing and metaphor. (21)

   Therefore, it is hardly surprising that judges are particularly drawn to songwriters with backgrounds in folk music and to Dylan in particular. (22) Folk songs are often stories with a point. Historically, folk musicians relied on a narrative structure in their songs, often in an attempt to persuade the listener to (in the words of Dylan) "lend a hand" (23) to whatever struggle the singer happened to be addressing. (24) Dylan himself often used a narrative structure in his earlier work, (25) sometimes while commenting on the legal system, such as in Percy's Song (26) and The Lonesome Death of Hattie Carroll. (27) Even after Dylan severed his ties to the folk scene and entered the rock mainstream, he would sometimes revert to a narrative structure when the old urge to provide social commentary reemerged. In Hurricane, for example, Dylan delivers a critique of the legal system while telling the story of Rubin "Hurricane" Carter, a boxer wrongfully convicted of murder. (28) As lawyers and judges are in the business of telling stories themselves, they can appreciate a skilled practitioner.

   Perhaps more than any other popular artist, Dylan's lyrics are well suited for the task of legal persuasion. The use of metaphor and vivid imagery is a common technique in judicial opinion writing. (29) From the fruit of the poisonous tree to unclean hands to the marketplace of ideas, metaphors populate the legal lexicon. When used efficiently, metaphors enable readers "to understand one phenomenon in relationship to another." (30) They can, in the words of one author, "trigger[] powerful, recurring frameworks of meaning and patterns of belief, and ... set[] in motion deeply rooted folk images, archetypes, and story lines." (31)

   While music critics and scholars have debated whether Dylan's lyrics qualify as poetry, (320 there can be no doubt that Dylan's songs contain a wealth of imagery. To take just one example, A Hard Rain's A-Gonna Fall conjures images of "twelve misty mountains," "six crooked highways," "seven sad forests," and a "dozen dead oceans," all in the space of one verse. (33) Indeed, given Dylan's extensive use of imagery and metaphor, "one instinctively searches for the 'message'" in his songs. (34) Of course, some judicial metaphors fail to accomplish the goal of enlightening the reader and instead serve to confuse or obfuscate. (35) Some of Dylan's metaphors might be subject to the same criticism. But in other instances, it is difficult to miss their meaning, and for a judge seeking to explain a legal concept, Dylan's lyrics may be an attractive resource.

   A related reason why Dylan's lyrics may be particularly attractive for judges is the fact that many of the images and phrases in Dylan's songs are highly memorable. Simply stated, Dylan can turn a phrase. A well-constructed metaphor is likely to be particularly illuminating, and a memorable phrase is more likely to evoke a positive emotional response. Both are useful in terms of persuading a reader. So, it stands to reason that judges would be attracted to the lyrics of the man who warned that "you'd better start swimmin' or you'll sink like a stone" (36) and who has a plethora of similarly memorable lines at his command.

   A final reason why Dylan's lyrics may be...