OrinKerr.com

Choosing Opinions for a Casebook

I’m putting the finishing touches on my computer crime casebook — I hope to get it to the publisher in about a week — and I made a last-minute change on the case used to explore the consent exception of the Wiretap Act. I decided to use a case with the best facts and most detailed discussion of the relevant law: Griggs-Ryan v. Smith, 904 F.2d 112 (1st Cir. 1990). But I ran into a problem: the case is fun and colorful but parts of it are maddeningly hard to read.

Griggs-Ryan is an opinion by Judge Selya. Selya opinions are a matter of taste, but they are pretty unique in the Federal Reporter: Either you like how he dresses up his opinions with interesting words, or you find his opinions highly annoying. (For his defense of his writing style, see Howard Bashman’s 20 Questions Interview.) This means that when reading a Selya opinion, you either need a dictionary close by or else you just figure that you won’t understand a few words but can probably get the gist of the opinion from the context of the words you do understand. Most practictioners do the latter, I assume, and law students certainly do.

In any event, I decided to use the Griggs-Ryan case and edit it heavily down to about two pages. The case is a good teaching tool: the facts are fun, the analysis is very interesting, and the the case is a difficult one. At the same time, it was interesting to strip down the case of the excess stuff to see what was left. Here’s an example of stuff I took out from the beginnning of the opinion’s analysis section:

Plaintiff, as if bent on out-heroding Herod, see generally W. Shakespeare, Hamlet, Act III, sc. ii (1601), harangues stridently that brevis disposition of his complaints contravened both the general purposes of Title III and the specific rationale behind the statute’s consent exception. Turning up the volume, however, cannot mask the paucity of content contained in plaintiff’s argumentation.

Although plaintiff repeatedly declaims that wire communications are “protected absolutely from illegal interception,” that rallying cry-like most sloganeering-overstates the proposition. Title III was intended to prohibit all interceptions “except those specifically provided for in the Act.” United States v. Giordano, 416 U.S. 505, 514, 94 S.Ct. 1820, 1826, 40 L.Ed.2d 341 (1974). Congress, in its wisdom, chose to insert a myriad of exceptions and restrictive definitions into Title III, purposely leaving certain wire communications unprotected. See, e.g., 18 U.S.C. § 2511(1) (prohibiting intentional interception and disclosure “[e]xcept as otherwise specifically provided”); see also Camacho v. Autoridad de Telefonos de Puerto Rico, 868 F.2d 482, 489 (1st Cir.1989) (discussing some types of legal interceptions); United States v. Axselle, 604 F.2d 1330, 1334 (10th Cir.1979) (Title III outlaws only “willful” intercepts). Accordingly, there is little to be gained by pejorative declamations; the question is simply whether a particular intercept runs afoul of the statute’s imperatives.

In other words, “Plaintiff argues that the district court wrongly rejected his Title III claim. We disagree because the consent exception permits the surveillance.”

While I’m at it, here’s a question for current law students. Griggs-Ryan is a telephone wiretapping case, and the opinion is filled with telephone jokes. Indeed, the first line of Judge Selya’s opinion is “Reaching out to touch someone, plaintiff-appellant Gerald Griggs-Ryan filed two related civil actions in the United States District Court for the District of Maine.” This is a little joke about the “reach out and touch someone” TV advertising campaign that AT&T used in the 1980s; reaching out and touching someone meant making a phone call, not filing a lawsuit. (For a trip down memory lane, here is one of the 1983 TV advertisements from this campaign; here is the audio of the original commercial from 1979.) I am assuming that a law student today won’t get the joke, and that I should edit this out to avoid confusing readers. Right?

UPDATE:  Thanks for the many responses.  Most (but not all) students report that they get the joke, so I have put the line back in.  I guess I can always take it out for the 2nd edition….