Legal Commentary

OK, Dear Readers: Let's play a law-geek game: Give and discuss examples of famous legal and law-related quotations or statements that are frequently thrown around (by lawyers and non-lawyers alike) in a way that completely and utterly misses the point of the original quotation or statement.

My nomination: Justice Stewart's famous concurring opinion in Jacobellis v. Ohio, saying of hard-core pornography "I know it when I see it."

How it comes up: Get into any conversation about the difficulty or impossibility of coming up with a meaningful and workable definition for some concept or idea (say, judicial activism or bipartisanship or what political views are so offensive as to be beyond the pale) and the response often will be something to the effect of, "Well, I think we can just use Justice Stewart's definition," with the implication that this is good enough to resolve the definitional problem and thus resolve the dispute.

Why it misses the point: After the jump:

Jacobellis was one of a series of cases from the mid-1960s when the Court, having established that obscenity is unprotected speech and established a somewhat weak definition in 1957, struggled to apply it. In just about all the cases, the Court reversed the obscenity conviction, but without a majority opinion and without anything close to agreement about a standard. Jacobellis itself was a 6-3 judgment producing four opinions in support of that judgment, including Stewart's two-paragraph statement for the ages.

But Stewart actually was arguing that the Court's definition of obscenity had been an attempt to define the undefinable and was, at some level, unworkable. In the sentence preceding his money quote, Stewart said only hard-core pornography could be obscene, but that he would not try to define that concept, suggesting he "could never succeed in intelligibly doing so." But forced to decide whether Jacobellis' conviction should stand, he concluded that this movie "is not that."

Stewart was not proposing a definition. Nor was he suggesting that "I know it when I see it" should be good enough. Quite the opposite--he was decrying the futility of ever finding a workable or even-handed definition and, to some extent, throwing up his hands at the effort (he would later join with Justice Brennan in rejecting any categorical definition of obscenity as unprotected speech). I do not read Stewart as finding this a good or acceptable state of affairs. And I definitely do not read him as saying that IKIWISI satisfies him or is or should be acceptable as a legal definition for anything. So to say "Oh, we'll just rely on Justice Stewart and we know __ when we see it," as if it can resolve anything, is to completely miss the point he was making.

Other examples to offer?