Lawsuit, Shmawsuit

Judge Alex Kozinski & Eugene Volokh,
103 Yale Law Journal 463 (1993)


Searching the MEGA file in LEXIS reveals that "chutzpah"
(sometimes also spelled "chutzpa," "hutzpah," or "hutzpa") has
appeared in 112 reported [judicial] 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 explanation 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." All right-thinking people know good bagels
are rather soft.{fn1} 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.{fn2} 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. 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,{fn3} "maven" in four, "klutz"
in three.{fn4} "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.{fn5} The only bona fide use was, believe
it or not, in another Georgia opinion (and not by the same judge,
either).{fn6}

"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 case. 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, but what do they know from Yiddish?

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.{fn7} 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
schmucks 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. For what
it's worth, the petitioner was a used-car dealer.{fn8} And there's
also People v. Arno, where the first letters of each sentence in a
footnote spell out "schmuck" (apparently referring to the dissent).
Harsh.

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" appears 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" to Texas
Pig Stands, Inc. v. Hard Rock Cafe International, Inc., which
concludes that "though not entirely kosher, Hard Rock's actions
were not . . . swinish." Pig Stands is somewhat atypical, though, as
its reference to "kosher" is just one in a series of pork jokes.

Yiddish has also begun to appear in defamation cases. A 1972
New York case concluded that calling the food at a restaurant
"ground-up schmutz" wasn't actionable because it was only opinion.

An Arizona court recently held the same about calling a
building development a "cockamamie idea," as did an Illinois court
about calling a business a "schlock operation." The Illinois trial
court consulted as a reference Leo Rosten's The Joys of Yiddish; it
also reviewed the case law of New York, California, Illinois, and
Florida (and why not Georgia?) to see if the word "schlock" had
ever been the subject of a libel action.

Like many other historical inquiries, etymological questions
often have no clear, unambiguous answer. Is "kosher," for
instance, even a Yiddishism at all? Was it borrowed from Hebrew
via Yiddish, or directly from Hebrew? "Put the kibosh on" can be
found in two cases, but while some authorities (including our ears)
claim it's Yiddish, the better view seems to be that it's not.

"Brouhaha" has been used in more than 80 cases, but it's
unclear whether it is in fact Yiddish. "Glitch" appears in over
130 cases, but it might have been borrowed either from Yiddish or
German (a difficult question, since the languages are so similar).
Moreover, perhaps because it's been in general use in engineering
lingo for decades, it may now be no more a Yiddishism than "robot"
is a Czechism. Finally, "cockamamie" is unknown in European
Yiddish, and has developed entirely in America--is it a Yiddishism,
or an Americanism that happened to originate with American Jews?

The spread of legal Yiddish is often inadvertent; for every
case that self-consciously cites Leo Rosten, there are ten where a
word seems to be used just because it's the right word. One of the
authors of this very Essay has--entirely unwittingly--done this:
the dissent from denial of rehearing en banc in White v. Samsung
Electronics America, Inc. contains the only use of the word
"schtick" in a reported case. (As it happens, the law clerk who
put it in was Irish Catholic.) And it was only by accident that
the authors learned of the novelty of this feat; a friend wrote to
say he was surprised to see the word in a published opinion.
What's so surprising? How else would you say it?

Where all this will go from here is hard to say. "Chutzpah"
is firmly ensconced, and, we're happy to say, usually spelled
right. Ch's are always better than mere H's, and the h at the end
gives it just the right touch. "Kosher," "kibitz," and maybe
"maven" and "klutz" are looking good. The "sch" words are iffier,
but we think they've got a future. Others, like "nudnik" and
"meshugge," haven't made a dent, though they deserve better.

We return then to the beginning, to chutzpah. The most famous
definition of "chutzpah" is, of course, itself law-themed: chutzpah
is when a man kills both his parents and begs the court for mercy
because he's an orphan.

But there's another legal chutzpah story.
A man goes to a lawyer and asks: "How much do you charge for legal advice?"
"A thousand dollars for three questions."
"Wow! Isn't that kind of expensive?"
"Yes, it is. What's your third question?"
Chutzpah.

{fn1} Day-old bagels are rather hard, but right-thinking people do
not eat day-olds, even when they are only 10 cents each.

{fn2} The earliest reported case we've found that uses a Yiddish
word (other than in a name or a literal quote) is In re Kladneve's
Estate (N.Y. 1929), which describes Kladneve as "what is called in
Yiddish a 'schmorer.'" This is a puzzle. To the best of our
knowledge, there's no such Yiddish word, and "schnorrer"--the
closest word that might fit--means "moocher," which doesn't make a
lot of sense in context, and also isn't a very nice thing to say
about the recently departed. We know of no other cases before the
1970's except Robison v. Robison (Utah 1964); Zannone v. Polino
(N.Y. 1956); and In re Bodus' Will (Wis. 1949), all involving
kibitzers.

{fn3} Zannone v. Polino (N.Y. 1956), is a case with a moral, a
case of kibitzing at a card game turning into a knife fight and a
lawsuit. Boys and girls, take note!

{fn4} See also Klopp v. Wackenhut Corp. (N.M. 1992) (quoting one
of the parties as contending "it had no duty to design the security
station 'for klutzes and total idiots'").

{fn5} Woody Allen's characters have always struck us more as
nebbishes than schlemiels. "A [schlemiel] is always knocking
things off a table; the [nebbish] always picks them up." LEO
ROSTEN, THE JOYS OF YIDDISH 349 (1968).

{fn6} MCG Dev. Corp. v. Bick Realty Co. (Ga. 1977). The opinion
starts with, "The right to amend is as broad as the Atlantic Ocean
and as saving as the power of salvation," a nifty line, even if
mere English. Georgia also brings us "tsoriss," Banks v. State,
(Ga. 1974) (describing "appellant's tsoriss"), "shammes," State v.
Koon (Ga. 1975), and "gut gezacht" (Ga. 1976). All four of these
come from Judge Clark, the same one who first used "chutzpah." See
also United States v. Cangiano (2d Cir. 1974) ("schlock"); United
States v. Scott (E.D.Wis. 1991) ("no-goodnik"); United States v.
Mayersohn (E.D.N.Y. 1971) ("tzimmes"); Lerner v. Brin, (Fla. 1992)
("rachmones"); State v. Stephens (Neb. 1991) ("Better the majority
should worry about its umfarshtendenish of Rule 404(2), not
Stephens' chutzpah."); cf. David Margolick, At the Bar, N.Y. TIMES,
June 26, 1992, at B8 (motion using the word "dreck" arouses judge's
ire).

{fn7} The same happens to be true of "putz" and of "mensch." We'd
much rather be named "mensch" than "schmuck." Oddly, though, a
search for NAME (SCHMUCK) found 59 cases and NAME (MENSCH) found
only 43 cases. Perhaps this is because there are more schmucks
than mensches in the world; but wouldn't the real schmucks change
their names so as to better fool people, and real mensches change
theirs out of modesty? Besides, the true schmuck-mensch ratio is
much higher than 59 to 43.

{fn8} Another little surprise: searching for "goy" revealed dozens
of people named "Goy." How come? Why would a Jew be named Goy?
And why would a goy call himself a goy? Cf. Gentile v. State Bar
(U.S. Sup. Ct. 1991). Go figure.

-- Eugene Volokh, UCLA Law