Rewrite This Sentence

by Justice Bill Boyce, Fourteenth Court of Appeals

Legal opinion writing is a strange hybrid.

The legal opinion must deliver a formal recitation and application of governing legal principles.  Given reliance on precedent, these principles often are expressed in stiff, verbose, or archaic language.  But legal opinions must apply formal legal principles to the particular facts of particular cases.  Frequently, these factual scenarios are brimming with references to pop culture, slang, and profanity.

This being a family-oriented appellate newsletter, I will not explore how opinions deal with this tension in the context of civil or criminal cases whose sobering circumstances necessitate detailed discussion of explicit or profanity-laced testimony.

I will focus instead on the intersection of formal legal analysis and references to pop culture or slang.

In this context, the tension sometimes results in opinions that provoke a reaction similar to the Hip Senior Citizen vein of comedy mined by performers such as Betty White.  This style of comedy tries to create laughs by juxtaposing the dignified image of an elderly, white-haired performer with a monologue containing trendy, up-to-the-nanosecond-current content usually associated with twenty-somethings.

This brings us to Already, LLC v. Nike, Inc., No. 11-982, 2013 WL 85300 (U.S. Jan. 9, 2013).  According to Westlaw, this opinion marks the first time in history that the term “Soulja Boys” has appeared in a Supreme Court opinion.

Some background might help.

Already addresses “whether a covenant not to enforce a trademark against a competitor’s existing products and any future ‘colorable imitations’ moots the competitor’s action to have the trademark declared invalid.”  Id., 2013 WL 85300 at *3.  It arose from a suit in which Nike alleged that Already infringed and diluted Nike’s trademark on its Air Force I line of athletic shoes.  Id.  Already allegedly did so by marketing shoe lines known as “Sugars” and “Soulja Boys.”  Id.  Already filed a counterclaim alleging that Nike’s Air Force I trademark is invalid.  Id.

For the uninitiated, Urban Dictionary provides a number of definitions of “soulja” including someone who has gone through hard times and fought against adversity.  The name “Soulja Boy” also has been adopted by hip hop performer DeAndre Cortez Way.

Four months after Already counterclaimed, Nike issued a “Covenant Not to Sue” in which it promised that “Nike would not raise against Already or any affiliated entity any trademark or unfair competition claim based on any of Already’s existing footwear designs, or any future Already designs that constituted a ‘colorable imitation’ of Already’s current products.”

The Supreme Court unanimously decided that Nike’s covenant mooted Already’s invalidity counterclaim because Nike could not reasonably be expected to resume its enforcement efforts.  According to Chief Justice Roberts, “The covenant is unconditional and irrevocable.”  Already, LLC, 2013 WL 85300 at *6.  “Beyond simply prohibiting Nike from filing suit, it prohibits Nike from making any claim or any demand.”  Id. (original emphasis).  “It reaches beyond Already to protect Already’s distributors and customers.”  Id.  “And it covers not just current or previous designs, but any colorable imitations.”  Id.

In a concurring opinion joined by Justices Thomas, Alito, and Sotomayor, Justice Kennedy agreed that this particular case was moot but wrote separately to “underscore that covenants like the one Nike filed here ought not to be taken as an automatic means for the party who first charged a competitor with trademark infringement suddenly to abandon the suit without incurring the risk of an ensuing adverse adjudication.”  Id. at *12 (Kennedy, J., concurring).

Chief Justice Roberts handled the opinion’s unavoidable references to “Soulja Boys” by letting them pass without comment or explication.  The Chief Justice did, however, allow himself a short riff on mythological shoes while noting the absence of evidence that Already sells shoes falling outside the covenant’s reach.  Id. at *6 (“If such a shoe exists, the parties have not pointed to it, there is no evidence that Already has dreamt of it, and we cannot conceive of it.  It sits, as far as we can tell, on a shelf between Dorothy’s ruby slippers and Perseus’s winged sandals.”).

Unless extended discussion of a slang or pop culture reference is needed for the opinion’s analysis to make sense, the approach used in Already probably is best.  No explanation was required here; the shoes are called “Soulja Boys” because that’s what Already calls them, and that’s enough to know for purposes of this opinion.

There are writing hazards to consider no matter how one approaches the issue of defining unfamiliar terms in legal opinions.  Over-definition clutters up an opinion with extraneous information that does not aid – and may in fact impede – the reader’s understanding and ability to grasp the essential legal reasoning quickly.  Under-definition may lead to confusion later.

In the context of pop culture, unnecessary inclusion and definition of slang creates an additional risk of making the opinion and the court look out-of-touch.  Sort of like the aged grandparent who provokes eyerolls at dinner by commanding, “So, tell me what you young whippersnappers do for fun these days!”  The same effect can be achieved, as I recently discovered, by asking one’s teen daughter to explain Pinterest.  Cf. Aspen Skiing Co. v. Aspen Highlands Skiing Corp., 472 U.S. 585, 587 (1985) (“Aspen is a destination ski resort with a reputation for ‘super powder,’ ‘a wide range of runs,’ and an ‘active night life’ . . . .”).

The countervailing consideration is that undefined terms from an earlier era can lose meaning over time and lead to head-scratching among later readers.  Does anyone under 80 know what a “taxi dance hall” is?  See Young v. American Mini Theaters, Inc., 427 U.S. 50, 52 n.3 (1976).

I guess that’s why Wikipedia exists.