The Freewheelin' Judiciary: A Bob Dylan Anthology

Article excerpt

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? …