Michael Conklin, ‘“Be a Lot Cooler if You Didn’t”: Why Judges Should Refrain from Pop Culture References in Judicial Opinions’

The use of pop culture references in judicial opinions – sometimes referred to as ‘dropping pop’ – is unfortunately a growing trend. This Article presents the 2021 Briseño v Henderson opinion as an illustration of the harms of unnecessary pop culture references. It provides a thorough analysis of the numerous ways in which pop culture references in judicial opinions are ill advised. It also addresses the arguments in favor of the practice, providing counterarguments to show why any purported benefits are exaggerated and far outweighed by the downsides. Then advice for judges, including best practices, is given. The Article concludes by providing suggested language for the Model Code of Judicial Conduct regarding pop culture references.

Pop culture references are often misunderstood, which can lead to a misunderstanding of the case. Traditionally marginalized populations are particularly vulnerable to this, as they often do not share the same exposure to pop culture as predominantly white judges. They result in litigants believing that the judge was arbitrary, irreverent, and making fun of their plight. They blur the lines between fictional entertainment and the real-life legal system. They are perhaps indicative of a judge who is focusing on self-promotion at the cost of sound legal analysis. And they can be distracting, especially when the reader finds the reference offensive.

Any net benefit gained by the entertainment value some experience from a pop culture reference is offset by the confusion and disagreement by others. And pop culture references are not necessary to create an engaging opinion. These references can serve as ‘seductive details’ drawing attention away from the legal holding. They are likely not as persuasive as some advocates claim, and even if they were, persuasion is not a primary goal of a judicial opinion. The general public may find pop culture references in judicial opinions interesting, but this likely comes at the cost of diminished respect for the judicial system.

Conklin, Michael, ‘Be a Lot Cooler if You Didn’t’: Why Judges Should Refrain from Pop Culture References in Judicial Opinions (August 2021).

First posted 2021-09-01 13:00:49

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