Yiddish & the Law
(Amusing/Informative/Schloarly/Long)(fwd)-Forwarded
Judge Alex Kozinski & Eugene Volokh, "Lawsuit, Shmawsuit," 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.[1] 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. [2]
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,[3] "maven" in four, "klutz" in
three.[4] "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.[5] The only bona fide use was, believe it or not, in another Georgia opinion (and not by the same judge, either).[6]
....
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.[7]
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.[8]
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.
....
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.
[1] Day-old bagels are rather hard, but right-thinking people do not eat day-olds, even when they are only 10 cents each. back
[2]
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 schnorer.'" 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.back
[3] 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! back
[4] 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'"). back
[5] 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 49 (1968).back
[6]
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). back
[7]
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. back
[8] 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. back
-- Eugene Volokh, UCLA Law
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