Thursday, October 27, 2011

"Oh look! I read books!"

In the course of checking judicial usage of the contraction "to've" (upshot: more casual than I'd thought), I found what may be Justice James L. Robertson's most pretentious opinion, Dycus v. Sillers, 557 So. 2d 486 (Miss. 1990).

The beginning of the opinion has to be seen to be believed:
This is a case about a fishin' hole. It lies in western Bolivar County near the River, and at birth was named Beulah Crevasse, though many have long called it the Merigold Blue Hole. People who can get there without trespassing on land want to enter and fish. Landowners and their long time lessee hunting club want just as badly to keep the public out. The relative scarcity of good fishing spots, Landowners' bona fide needs for protection of their valuable timber and water resources, club members' desire for undisturbed aesthetic and sporting enjoyment of the blue hole they have long thought theirs, the violent life of Old Man River, notions of fish as ferrae naturae, and, as well, the human penchant for confusing want with right, desire with entitlement, and the familiar with the necessary-these and more form important background forces driving this civil warfare which we are charged to channel within the levees of the law.

This is also a case about a people, the waters they fish, and a unique culture and lore. These form an ambiguous but real part of our life whose pulse is preserved in the product of our poets from the famous to the obscure.FN1

FN1. More often than we dare or can admit, law's lame language cannot convey the realities and mood of the matter the judge must adjudge. Compare McInnis v. State, 527 So.2d 84, 89 (Miss.1988); City of Clinton v. Smith, 493 So.2d 331, 334-36 (Miss.1986); Pharr v. State, 465 So.2d 294, 297-99 (Miss.1984); see also Flood v. Kuhn, 407 U.S. 258, 260-64, 92 S.Ct. 2099, 2100-2103, 32 L.Ed.2d 728, 732-33 (1972). Today's is such a case.

Many think fishing the most leisurely of leisure activities, the positive pursuit of the lazy. In describing his childhood in Yazoo County, Willie Morris recalls

We did cane-pole fishing, both to save money and because it was lazier, for we seldom exerted ourselves on these trips to Wolf Lake or Five Mile.FN2

FN2. W. Morris, North Toward Home 75 (1967).

It was a leisure to be consumed and cherished, a spot in the shade preferred, and whether the fish were biting was secondary.

When the biting was good, we might bring home twenty or thirty white perch or bream or goggle-eye; when it was bad we would simply go to sleep in the boat. FN3

FN3. Id.

But there was always a Miss Julia Mortimer, the local school marm, revered in time but then the scourge of every young Willie Morris, Miss Julia who'd “get behind some barefooted boy and push,” said Uncle Percy. “She put an end to good fishing,” FN4

FN4. E. Welty, Losing Battles 235 (1970).

Outside the home, we boys was more used to sitting on the bridge fishing than lining the recitation bench. Now she wanted that changed,FN5

FN5. Id. at 236.

Uncle Curtis remembered of Miss Julia.

Fishing is a part of the very life and being of many in Mississippi, as with Eudora Welty's enigmatic Billy Floyd, of whom “it was said by the old ladies that he slept all morning for he fished all night,” FN6 and who Jenny noticed when he walked down the street because “his wrist hung with a *488 great long catfish.” FN7 Ellen Douglas' Estella, who had just given birth said “Baby or no baby, I got to go fishing after such a fine rain,” FN8 the same Estella in whose fishing style Douglas sees poetry, Estella who

FN6. E. Welty, “At the Landing” in Collected Stories 243 (1980).

FN7. Id. at 240.

FN8. E. Douglas, “Hold On” in Black Cloud White Cloud 166 (1963).

addressed herself to the business of fishing with such delight and concentration.... She stood over the pool like a priestess at her altar, all expectation and willingness, holding the pole lightly as if her fingers could read the intentions of the fish vibrating through line and pole.FN9

FN9. Id. at 171.

Then there is Walker Percy's Anna Castagna, Binx Bolling's mother, who “looks like the women you see fishing from highway bridges,” FN10 who sits on the porch overlooking the water at Bayou des Allemands and

FN10. W. Percy, The Moviegoer 148 (1961).

casts in a big looping straight-arm swing, a clumsy yet practiced movement that ends with her wrist bent in in a womanish angle. The reel sings and the lead sails far and wide with its gyrating shrimp and lands with hardly a splash in the light etherish water. Mother holds still for a second, listening intently as if she meant to learn what the fishes thought of it, and reels in slowly, twitching the rod from time to time.FN11

FN11. Id.

Many Mississippians, including our own Chief Justice Roy Noble Lee,

feel that a person who has never ... angled for bass or caught bream on a light line and rod, or taken catfish from a trotline and limb hook, has never lived.FN12

FN12. Strong v. Bostick, 420 So.2d 1356, 1364 (Miss.1982), quoted in Pharr v. State, 465 So.2d 294 at 298.

Still, some of us are like Faulkner's Lucius Priest who at age 11, when Uncle Parsham asked, “Do you like to go fishing?,” thought “I didn't really like it. I couldn't seem to learn to want-or maybe want to learn-to be still that long,” but said quickly: “Yes, sir.” FN13 Lucius, being led to Mary's fishing hole,

FN13. W. Faulkner, The Reivers 248 (1962).

sat on the log, in a gentle whine of mosquitoes.... Then I even thought about putting one of Lycurgus's crickets on the hook, but the crickets were not always easy to catch.... [When nighttime finally fell and Uncle Parsham returned,] “had a bite yet?” [Lucius finally confessed,] “I ain't much of a fisherman,” I said, “how do your hounds hunt?” FN14

FN14. Id. at 249.

Binx Bolling was of Lucius' mind, though it is doubtful they had anything else in common. “You know I don't like to fish,” Binx said to this mother.

“That's true,” she says after a while, “You never did. You're just like your father..... He didn't like to fish?” FN15

FN15. W. Percy, The Moviegoer 149 (1961).

And so of Preston Cunningham,FN16 even though his unwitting son, Carroll, had had a pond dug for him beyond the yard “stocked with bass and perch.”

FN16. B. Lowry, Emma Blue 34 (1978).

But even for those who warm to it so much more than Lucius and Preston and Binx, and maybe even Binx' father, fishing is not the central motion of our outdoor life but is always second fiddle to the hunt. Not quite the afterthought, it is the interlude, the escape, relaxation, almost taken for granted until you can't fish, not nearly so enobling or paradoxical as hunting the deer, with its ritual rite of passage of adolescence and loss of innocence as when the old half-Indian Sam Fathers “dipped his hands into the hot blood” and marked young Ike McCaslin's face teaching him humility and pride.FN17

FN17. W. Faulkner, Go Down, Moses 165, 350-51 (1942).

Perhaps it is because the fish is less like us-and more plentiful and more familiar, *489 it is not the centerpiece but the analogy, the simile, as Ike thought as the bear disappeared into the woods:

It faded, sank bank into the wilderness without motion as he had watched a fish, a huge ole bass, sink back into the dark depths of its pool and vanish without even any movement of its fins.FN18

FN18. Id. at 209.

Or Eudora Welty's “[m]uscadine spread under the waters rippling their leaves like schools of fishes.” FN19 Will Barrett's “knee leapt like a fish.” FN20 Gary, Larry Brown's lonesome night hawk, found Connie “cold as a fish” FN21 And from Beverly Lowry: Might have been pleasant. Looking at his white behind-the-ear skin. White as a cooked perch, Emma Blue wistfully thought after she had refused John Robert's offer of a ride to school.FN22

FN19. E. Welty, supra, note 6 at 251.

FN20. W. Percy, The Last Gentleman 187 (1966).

FN21. L. Brown, “Night Life” in Facing the Music 116 (1988).

FN22. B. Lowry, Emma Blue 19 (1978).

Fish furnish less pleasant images. Again, Welty, describing the house after the floodwaters had receded:

“That slime, that's just as slick! You know how a fish is, I expect,” the postmaster was saying affably to both of them, ... “That's the way a house is, been under water.” FN23

FN23. E. Welty, supra, note 6 at 248.

Mississippi's game fish are of many stripes, their personalities as different as our people. There are the bream, Nash Buckingham's “matchless little marauders” FN24, but the biggest, little bigger than the size of your hand,FN25 to any objective observer “the sweetest eatin' there is.” FN26 There are the perch and crappie, but little poetry about these.

FN24. N. Buckingham, “Jailbreak” in Game Bag, 165 (1943).

FN25. E. Douglas, supra, note 8 at 171.

FN26. See J. Autry, “Fishing Day” in Life After Mississippi 3 (1989).

Then there is the large mouth bass, Buckingham's “leviathans,” FN27 “placed in the waters of the South so that fishermen have a preordained reason for idleness and spending money.” FN28 Outdoorsman Jim McCafferty says of bass: “This savage fighter will attack the right crank bait with all the fury of a treed wildcat.” FN29 Fishing for white bass on the oxbow lakes in the Delta, McCafferty exaggerates only slightly when he talks of “his duels with bruising white bass tak[ing] on an image of a sheriff looking for the outlaws.” FN30 David Chapman Berry, who grew up in the Delta, encounters the bass and is moved to poetry:

FN27. N. Buckingham, “The Sally Hole” in The Tattered Coat, 55 (1939).

FN28. G. Morris, “Fishing”, in Encyclopedia of Southern Culture, 1221 (1989).

FN29. J. McCafferty, “White Bass Basics”, in MS Outdoors 8 (March, 1983).

FN30. Id. at 16.

Stump in the pond, stump in my eye, My fly pops inches from the stump. Bass, all wrist, roiling deep in thought, wedge from the bottom of the headpan, and buckling the surface under the fly, blur through their tunnel of scales, shattering the mirrory surface, the fly engorged, the fly, the fly leading the bass by the lip. I break their heads with the butt of the Buck knife. They stiffen shimmering. Scaling rakes the silver off mirrors-my raw eye a dump of shimmers? I eat fish to keep my head stocked. Some fellows refinish mirrors, but I eat fish to restore ponds. Don't believe it that life's only a matter of how you look at it. Smell my hands.FN31

FN31. D. Berry, “Bass” in An Anthology of Mississippi Writers (Polk and Scafidel eds.) 502 (1979).

*490 Finally, is the ubiquitous catfish, of the family ictaluridae, the blue, the channel and the flathead, of whom legends transcend the fact-fiction dichotomy. A gargantuan catfish bumped into Marquette's canoe, almost prompting the French explorer to believe what the Indians had told himabout the river's roaring demon.FN32 Huckleberry Finn and Jim caught a catfish that was as big as a man and “weighed over two hundred pounds.” FN33 Hodding Carter claimed to have “gigged a catfish that measured almost five feet in length.” FN34 Though still regarded rough fish, channel catfish farming has become the nation's leading aquaculture industry with Mississippi producing an estimated 200,000,000 pounds of farm-raised catfish a year.

FN32. Young, “Catfish” in Encyclopedia of Southern Culture, 378 (1989).

FN33. M. Twain, Huckleberry Finn 60 (1885).

FN34. H. Carter, Man and the River: The Mississippi 30-31 (1970).

The fisherman's tackle and gear vary widely, from the cane pole used to fish for bream and catfish. The legendary Kentucky reel is still the favorite of the bass fisherman.FN35 Brooks Haxton tells of jug fishing. “[Y]ou took gallon jugs. Empty Clorox bottles were the best.” FN36 Hodding Carter jugfished for catfish.

FN35. See Henshaw, “Evolution of the Kentucky Reel” in Outing Magazine.

FN36. B. Haxton, “To Be a Jug Fisherman” Dead Reckoning, 84(1989). Haxton's powerful poem reminds us of other realities of jug fishing for catfish and for life.

In jug fishing-to explain to the uninitiated-empty, gaudily-painted gallon jugs float downstream, each dangling a heavy cord and hook and smelly bait from its corked mouth. The fisherman's boat follows lazily. When the catfish strikes, under go jug and fish and both remain there until the fish's strength is gone. There both erupt into the air and the fisherman approaches to pull in his catch. Incidentally, you don't scale a catfish. You nail him against a tree or barn and-since he has no scales, but a heavy, tough skin-you skin him.FN37

FN37. H. Carter, supra, note 34 at 30-31 (1970).

The Encyclopedia of Southern Culture suggests a corrolation between the economic and social stature of fishermen, the game fish they pursue, and the method they prefer to use. At the bottom of the economic scale, the preferred fishing is catfish/bream by cork or bobber fishing/bait casting, bass/spinner fishing is the choice of blue collar families, bass fly-rod fishing of white collar workers, and artificial fly fishing for native trout is the preserve of upper income professionals.FN38

FN38. G. Morris, “Fishing”, in Encyclopedia of Southern Culture, 1221 (1989).

The point is belied by Ellen Douglas' ten-year-old Ralph Glover, hardly a child of poverty or disadvantage.

“I brought my gig,” Ralph said, as they all trudged across the levee toward the Yacht Club. “I'm going to gig one of those great big buffalo or a gar or something.” FN39

FN39. E. Douglas, supra, note 8 at p. 168.

Still few would deny Larry Brown's truth:

The rich have never seined minnows to impale upon hooks for pond bass. The rich do not camp out. The rich have never been inside a mobile home. FN40

FN40. L. Brown, “The Rich” in Facing the Music 38 (1988).

Not every Mississippi fisherman experiences what Mabry Anderson calls “the hypnotic lure of the outdoors.” FN41 Consider the Yocono River, Faulkner's Yoknapatawpha River, starkly seen by James Seay in his “Grabbling in Yokna Bottom.” FN42

FN41. M. Anderson, Outdoor Observations 166 (1977).

FN42. J. Seay, “Grabbling in Yokna Bottom” in Let Not Your Hart (1970).

The hungry come in a dry time
To muddy the water of this swamp river

And take in nets what fish or eel

Break surface to suck at this world's air.

But colder blood backs into the water's wood-

Gills the silt rather than rise to light-

And who would eat a cleaner meat

Must grabble in the hollows of underwater stumps and roots,

Must cram his arm and hand beneath the scum

And go by touch where eye cannot reach,

Must seize and bring to light

*491 What scale or slime is touched-

Must in that instant-on touch-

Without question or reckoning

Grab up what wraps itself cold-blooded

Around flesh or flails the water to froth,

Or else feel the fish slip by,

Or learn that the loggerhead's jaw is thunder-deaf,

Or that the cottonmouth's fangs burn like heated needles

Even under water.

The well-fed do not wade this low river.

Mississippi is “the only state with a season for ... [grabblin'].” FN43 Others compelled to fish are left by law and society no choice but to fish in such undesirable places as the ramp at Ellen Douglas' Lake Okatukla leading to the Phillipi Yacht Club.

FN43. J. Autry, “Grabblin' ” in Life After Mississippi 10 (1989).

Even in this terrible heat, at noon on the hottest day of the year, breathing this foul, fishy air, there will always be a few people fishing off the terminal barges, bringing in a slimy catfish or a half-dead bream from the oily water, raising their long cane poles and casting out their bait over and over again with dreamlike deliberation, ... FN44

FN44. E. Douglas, supra, note 8, 161-62 (1963).

Of course, mention of Huck Finn's and Hodding Carter's catfish tales suggests another inexorable feature of fishing, what Nash Buckingham called “finwhoppers.”

The worst of us get fed up and bored with pure, unadulterated lying. But a certain amount of rod and reel spoofing is absolutely essential to salve conscience, offset temptation and lend color.FN45

FN45. N. Buckingham, “Over the Brook Cedron,” in Ole Miss ' 111 (1937).

Barry Hannah tells us of water liars of another dimension in his story about “Farte Cove off the Yazoo River ... where the old liars are still snapping and wheezing at one another.”

“MacIntire, a Presbyterian preacher, I seen him come out here with his son-and-law, anchor near the bridge, and pull up fifty or more white perch big as small pumpkins. You know what they was using for bait?”

“What?” asked another geezer.

“ Nuthin. Caught on the bare hook. It was Gawd made them fish bite,” said Sidney Farte, going at it good.

“Naw. There be a season they bite a bare hook. Gawd didn't have to've done that,” said another old guy, with a fringe of red hair and a racy Florida shirt.FN46

FN46. B. Hannah, “Water Liars” in Airships 5 (1978).

Like tales are told at the Coffee Shop off the square in Clanton, Mississippi, where the folks talk “local politics, football and bass fishing.” FN47

FN47. J. Grisham, A Time To Kill 23-24 (1989).

Fishermen see a different world than the rest of us. According to Mabry Anderson, “Unless you are over forty years old and a bream fisherman, you probably think a cockroach is just a dirty black bug.” FN48 They humanize these unhuman-like piscators, often talking the fish into the boat. FN49 Lawyer Frank Wynne, a witness at trial, describing the contours of the Merigold Blue Hole, how the waters back out when the River is falling, lapses and tells of “a good fishing place” back where the waters come out of the woods and over the road. “I'll tell you what, you can go in there and catch a nice bass,” and through the cold record his smile and priorities are seen.

FN48. M. Anderson, Outdoor Observations 132 (1977).

FN49. E. Douglas, supra, note 8, at 171; and Anderson, Outdoor Observations at 161, 163 (1977).

The waters as well compete for bragging rights. The night before on what Doc had called “the best river dragging he'd ever been on,” William Wallace had said “There is nothing in the world as good as ... fish. The fish of the Pearl River.” FN50 But none is the source of more lore and awe than the Mississippi. David Cohn said in the Delta, folks “fear God and the Mississippi River.” FN51 Mabry Anderson said, “The Old *492 Man just rolls on and on and wipes out most of man's mistakes each spring when it charges right out of its banks.” FN52

FN50. E. Welty, “The Wide Net,” in Collected Stories 181 (1980).

FN51. D. Cohn, Where I Was Born and Raised 43 (1948).

FN52. M. Anderson, Outdoor Observations 41 (1977).

No man alive can bob about on its surface in a puny fourteen-foot boat when the gauge is showing fifty feet or more at Helena, Arkansas, without becoming a little more tolerant and just a little less sure of himself.FN53

FN53. M. Anderson, Outdoor Observations 41 (1977).

Still some see a flood a blessing, some like Luke Wallin's Watersmith and his sons Jesse and Bean and Robert Elmer who fish the Mock Orange Slough.

They waded in the muddy cool water up to their waists, .... On their first pass they got a bucketful of bluegills and a small catfish. They wiped the mud and sticks from the net to try again.

“Every time the river floods,” Paw said, “it brings us all these here treasures.”

“Sho does,” Bean said.

“I think it's fine,” Paw went on. “I think it's right nice of the old river.” FN54

FN54. L. Wallin, “The Redneck Poacher's Son” in I Mississippi Writers: Reflections of Childhood and Youth: Fiction 618 (D. Abbott ed., 1985).

This is a case about a fishin' hole, and the people who contest for it and care for it so variously, who are charged by the infinite to accept it in its ambivalence and antinomy. Such a fishin' hole is Lake Chatula in the far southwest corner of Ford County which

in the spring ... hold[s] the distinction of being the largest body of water in Mississippi. But by late summer the rains were gone, and the sun would cook the shallow water until the lake would dehydrate. Its once ambitious shore lines would retreat ..., creating a depthless basin of reddish brown water.FN55

FN55. J. Grisham, supra, note 47 at 11.

James Dickey has spoken of this connection between person and place, between man and a lake that once

... was deep flashing-

Tiny grid-like waves wire-touched water-

No more, and comes what is left

Of the gone depths duly arriving

Into the weeds belly-up:

one carp now knowing grass

And also thorn-shucks and seeds

Can outstay him:

* * * * * *

A hundred acres of canceled water come down

To death-mud shaking

Its one pool stomach-pool holding the dead one diving up

Busting his gut in weeds in scum-gruel glowing with belly-white

Unhooked around him all grass in a bristling sail taking off back-

blowing. Here in the dry hood I am watching

Alone, in my tribal sweat my people gone my fish rolling

Beneath me and I die

Waiting will wait out

The blank judgment given only

In ruination's suck-holing acre wait and make the sound surrounding NO

*493 Laugh primally: be

Like an open-gut flash an open under-

water eye with the thumb

pressure to brain the winter-wool head of me,

Spinning my guts with my fish in the old place,

Suffering its consequences, dying,

Living up to it.FN56

FN56. J. Dickey, “Remnant Water” in The Central Motion: Poems, 1968-1979 108-109 (1983).

Beulah Crevasse is but ninety-two acres of not yet cancelled water, and to those who war so over it Dickey seems to say that, if you like it when it is beautiful and serene and full of life, you must accept it-love it-equally when it has been taken away by nature and become but a mudhole with a dead carp in it, or when it has been taken by man, by the social invention he calls law. Dickey had these in mind when he said of such waters

[Y]ou have to accept the “gone depths” as well as the real depths that used to be there when the lake was whole, the dead fish as well as the live ones, the repulsive aspects of the scene as well as the beautiful ones that have disappeared: and if you are left with “ruination's suck-holing acre” it is your due: you know this and accept it, even with a kind of exultation, because the bond between you and the lake still exists no matter what, and you can therefore “laugh primally,” maybe no better than the dead belly-up fish but still, like he, in the old place, where you both belong, and know it.

We are informed by these thoughts, knowing that law is about life, that law is not an end but a means to the end of a society in which all should want to live, with its paradox and ambiguity, its irony and contrariety even that the law has wrought. We proceed to our institutional responsibility: the right interpretation and application of our law regarding rights to these waters.

Named Plaintiffs include the heirs of Walter Sillers, specifically his widow, Lena R. Sillers, who died in 1983 after suit was filed, Mary S. Skinner, Evelyn S. Pearson, Lilian S. Holleman, John L. Pearson, Evelyn P. Weems, Vernon W. Holleman, Sr., and Florence H. Schoenfeld. Alice K. Jones, the widow of Roy Jones, is a named Plaintiff, as is the Merigold Hunting Club, Inc., a Mississippi corporation. These are the parties who have brought this action, and in the main we call them “Landowners”.

Landowners' contestants-Defendants below and Appellants here-are fishermen. Walter Allen Ford grew up and lived but a few miles from Lake Beulah. He fishes commercially, the tools of his trade trot lines, nets and a small outboard motor boat. He fishes for “rough fish”-buffalo, catfish, gar. And so of the Dycuses and Charley Allen. They fish mainly at night.FN57

FN57. Compare E. Welty, supra, note 6 at 243; W.A. Percy, Lanterns on the Levee 17 (1941). Cf. Kelly v. Smith, 346 F.Supp. 20 (N.D.Miss.1972), aff'd Kelly v. Smith, 485 F.2d 520 (5th Cir.1973), (caretaker's rifle assault on trespassers on hunting club's preserve.)

At the center is the Merigold Blue Hole, formally though erroneously known as the Beulah Crevasse,FN58 and a remarkably good *494 fishing hole in western Bolivar County, about six miles below Rosedale, covering in the main some ninety-two acres, a map of which appears as Appendix A. To the north and west a chute 112 feet wide from treeline to treeline and 192 feet from top bank to top bank runs to the southern end of Lake Beulah, an oxbow lake some six toseven miles long. In the chute connecting crevasse and lake the water is ten feet deep six to eight months a year.

FN58. The linguist knows that a crevasse in life on the River refers to a breach in the top bank of the levee, not a lakelike body of water. When this happens “furious blue waters roar down the remains of the levee scouring deep holes in the earth.” Daniel, Deep'n As It Come: The 1927 Mississippi River Flood 22 (1977).

Nash Buckingham's short story, “The Sally Hole” tells of one such:
Between the levee and the house lay a twenty-acre lake, formed years ago when a lower barrier broke under the strain of an overwhelming freshet and dug out a deep, somnolent “Blue Hole.”

Buckingham, Tattered Coat 56 (1930). In his story of the Great Flood, Pete Daniel mocks a Corps of Engineers Colonel's dissertation on “ blew holes.”
Almost any inhabitant of the flooded area could have told the Colonel that it was a b-l-u-e hole because the water usually turned blue, and that it was the hole, some fifty to a hundred feet in depth, which was left when a crevasse gouged out the earth.

Daniel, Deep'n As It Come: The 1927 Mississippi River Flood, 148 (1977). For a broader perspective, see W.A. Percy, Lanterns on the Levee 244 (1941).

Our search of the judicial literature has yielded but a glancing reference to the formation of a blue hole. See Drainage District No. 48 of Dunklin County v. Small, 318 S.W.2d 497, 504 (Mo.1958).

In this opinion we consciously misuse the word “crevasse”, because the parties do, and by it refer to the body of water south of Lake Beulah left when the floodwaters receded in 1912. Indeed, the U.S. Army Corps. of Engineers labels it “Beulah Crevasse (1912)” in Flood Control and Navigation Maps of the Mississippi River, Map No. 24 (56th ed. 1988).
(Italics, indentation, etc. not preserved.)

That's eight pages in the Southern Reporter.

TBA agrees with the concurring opinion of Chief Justice Roy Noble Lee:
Finally, I have never attempted to edit the opinions of my colleagues on this Court. However, in my view, the first twelve pages of the majority opinion would best have been left unsaid, or relegated to a work of prose or fiction. The Bench and Bar have much law and many opinions to read and digest and should be permitted to choose when and where to read for pleasure.
The only thing I've seen like it is Rehnquist's dissent in the flag-burning case, Texas v. Johnson (which, among other things, quotes "Barbara Frietsche" in its entirety). That was bizarre and gratuitous as well, though also kinda funny.

Robertson is proud enough of Dycus to list it as a "notable case" or "professional accomplishment" on his web page. When the opinion does get around to mentioning the law, it seems correct; no one dissented.

... Mentioned to an older lawyer that I'd found maybe Robertson's silliest opinion. "The fishing one?" he asked.


  1. Robertson (at Chief Justice Lee's request) wrote a similar tribute to deer hunting, about which he knew nothing but pulled together much, in a case involving folks from Grenada prosecuted for headlighting deer. In the course of the opinion, he referred to the defendants as Snopeses for their unsportsmanlike hunting. This was taken by Justice Hawkins as a shot by a Delta person against the folks in the hills, and caused a pretty serious rift for a while, I've been told.

  2. Hm. Not sure Lee should criticize Robertson for this op and then request an ode to deer hunting.

    "Knew nothing, but pulled together much" sounds like a fine epitome of the lawyer's art.

  3. Robertson tried everyone's patience.

    515 So.2d 678 (Miss. 1987)

  4. If Soggy Sweat had been on the Court, I suppose his Whiskey Speech would have been woven into an opinion about bootlegging and untaxed whiskey.

  5. For many years I had a copy of the opinion penned by Robertson that held that garnishment was a purely judicial creature that should be abolished, and did abolish garnishment. It overlooked the obvious fact that garnishment is a statutory creature springing out of Sec 11-35-1, et seq. of the Miss. Code. The opinion was withdrawn the very same day it was issued, so I giuess my copy was somewhat of a rarity, but, alas, I lost it in the ensuing years. I treasured it as a reminder that not ever genius apparent is a genius in fact.

  6. That is a great story, Judge!

    To tell a story on myself, I drafted an op for a judge that mocked a term used in one side's brief. Only after the op was published, alas, did it occur to me to run a Westlaw search on the term in question, which proved to be a perfectly respectable one. Not outcome-determinative, thank goodness, but it taught me a lesson.

  7. I mocked an opponent's definition of the term "artful pleading" and Judge Barbour incorporated my wisdom into his opinion. Unpublished opinion, of course.

    But I take credit for Robertson's Anna Karenina opinion. I was rereading it that summer.

    Furthermore, fifty percent of the usages of the word "nonplussed" will be wrong. Because it means the opposite of what it would seem to mean.

  8. Jane, I followed up with a Google search and here's the first hit on "nonplussed":

    non·plussed/nänˈpləst/ Adjective:

    (of a person) Surprised and confused so much that they are unsure how to react.
    (of a person) Unperturbed.

    So, two opposite meanings (the latter of which, AFAIAC, is just mistaken). Lovely.

  9. It drives me crazy. Jane

  10. I see it misused all the time but last month I was reading a first novel ("The Family Sing" or something similar) that had been widely praised and there it was. I have to wonder if anyone is editing books anymore.

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