Mr. Justice Peter Smith, the British judge hearing the Da Vinci Code copyright case, has issued an opinion which contains some sort of hidden message. Italic letters in the first seven paragraphs spell out “Smithy Code.” In subsequent paragraphs, other letters also stand out, but they have yet to be deciphered. The judge was very candid about his work, saying in an interview “I can’t discuss the judgment, but I don’t see why a judgment should not be a matter of fun.” Gowri Ramachandran over at Prawfs agrees.
This is not the first time that a judge has crafted an opinion with an eye towards entertainment. Judge Kent’s famous order denying a motion to transfer has long been a Smoking Gun staple. Judge Buchmeyer’s opinion in Rimes v. Curb Records, written to the tune of Leann Rime’s “How Do I Live” is another goodie. (A portion of it can be found here.) Indeed, there is a whole website dedicated to curious and entertaining judicial opinions.
Are there institutional costs to using opinions in this way? In the individual case, it would seem to make little difference how funny or dry the opinion. But over time, if judges start to be seen as frustrated comedians, I wonder if the judiciary writ large loses some of its gravitas. Can a judicial comedian command the respect necessary to desegregate a school district, put a sitting governor in jail, or override a jury’s death verdict and impose life? (I discuss some of these issues in my piece, From Law to Content in the New Media Marketplace.)
I suspect that judges reap a benefit from these opinions beyond the opportunity to flex their funny muscles. I’m guessing – and I’d love to hear if this is right from those who know – that funny judges like Kent and Buchmeyer do particularly well hiring law clerks. Who wouldn’t want to clerk for a judge who airs it out from time to time?
There is also a broader question about whether the social role of judicial opinions changes when they are marketed by media outlets as “fun reading”. Will these content distributors push judges to produce more such opinions? Judicial decisions are, after all, free content. They aren’t copyrighted and the authors are paid with tax money. And the sale of quality free content produces very nice profit margins. Think these concerns are a bit silly? Think that nobody would really look at an opinion for fun? Consider today’s Birmingham News, where on the front cover the editors tease: “CAN YOU CRACK THE CODE? See the ruling online at www.al.com/birminghamnews/documents. ”
Will Shortz, watch your back!