Judge Alex Kozinski & Eugene Volokh, "Lawsuit, Shmawsuit"
(updated version of an article that was originally published at
103 Yale Law Journal 463 (1993))
Searching through the LEXIS legal opinions database reveals that "chutzpah" (sometimes also spelled "chutzpa," "hutzpah," or "hutzpa") has appeared in 231 reported court decisions. Curiously, all but eleven of them have been filed since 1980. There are two possible explanations for this. One is that during the last 21 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, a federal court 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. (Day-old bagels are rather hard, but right-thinking people do not eat day-olds, even when they are only 10 cents each.) 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. 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 two hundred times since 1980. During the same period, the word "temerity" (a woefully inadequate substitute) was used only about two hundred sixty times, and "unmitigated gall" a mere thirteen.
Other Yiddish words have had tougher sledding. Variations on "kibitz" have appeared in seventeen cases; consider especially, Zannone v. Polino, a 1956 New York case with a moral, where kibitzing at a card game turning into a knife fight and a lawsuit—boys and girls, take note! "Maven" has appeared in fourteen cases, "klutz" in three. (See also Klopp v. Wackenhut Corp. (1992), which quoted one of the parties as contending "it had no duty to design the security station ‘for klutzes and total idiots’"). Also appearing in other cases, federal and state: "schlock" (1974 and again in 1993), "no-goodnik" (1991), "tzimmes" (1971), "rachmones" (1992), "a writ of rachmones does not lie" (1998), and, "Better the majority should worry about its umfarshtendenish of Rule 404(2), not Stephens’ chutzpah" (1991).
"Schlemiel," also spelled "shlemiel," comes up six times, but one is in a quote from testimony, which doesn’t count, one is in the name of a book and three are descriptions of Woody Allen’s screen persona. The only bona fide use was, believe it or not, in another Georgia opinion, and not by the same judge, either. Georgia also brings us "appellant’s tsoriss" (1974), "shammes" (1975), and "gut gezacht" (1976). All four of these come from the same judge who first used "chutzpah."
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, a 1929 case from New York, 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 for three (from Utah, New York, and Wisconsin) involving kibitzers.
"Noodge" appears only once--but in a U.S. Supreme Court case. Incidentally, that opinion was written by Justice Scalia, who’s also the only U.S. Supreme Court Justice to use "chutzpah" (the word, not the behavioral trait) in an opinion. "Schlimazel" is nowhere to be seen, even when spelled as "schlimazl," "shlimazel," "shlimazl," "schlemazl," "shlemazel," "schlemazel," or "shlemazl." "Schmooze" appears three times, the first time in--you guessed it--a Georgia case. Unfortunately, the judiciary of that great state stumbled that 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. This is an unfortunate circumstance for researchers, and even worse for the poor Schmucks themselves.
The same happens to be true of "putz" and of "mensch." We’d much rather be named "mensch" than "schmuck," but, oddly enough, a search for NAME (SCHMUCK) found 87 cases and NAME (MENSCH) found only 63 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 87 to 63.
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? Consider also Gentile v. State Bar, a 1991 U.S. Supreme Court case. Go figure.
In any case, returning to "schmuck," we 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. 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 nearly 1300 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.
It’s likewise difficult to tell how many cases have used what logicians might call the "X, shmX" locution (as in the title of this very article)--there’s just no way to search for this in LEXIS or WESTLAW. We have, however, stumbled across it in a case in which a criminal defendant absconded before he was tried, and then, when he was eventually captured 16 years later, claimed that he was denied his speedy trial rights. "Given defendant’s chutzpah in attempting to profit in this case by his own wrongdoing," the court said, "we resist the temptation to let ‘speedy, schmeedy’ serve as our sole response to this contention." You can tell who won that case.
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 100 cases, but it’s unclear whether it is in fact Yiddish. "Glitch" appears in over 400 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 article has--entirely unwittingly--done this: his opinion in White v. Samsung Electronics America, Inc. contains the first 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," "maven," and maybe "schtick" (five uses, all in the last decade) and "klutz" are looking good. The other "sch" words are iffier, but we think they’ve got a future. Others, like "noodge" and "meshugge," haven’t really 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?"
Judge Alex Kozinski sits on the U.S. Court of Appeals for the Ninth Circuit. Eugene Volokh sits on his tuchis in his office at the UCLA School of Law, where he is a professor.