HUMOR

Green Eggs and Law: Lessons From Dr. Seuss

By John G. Browning

Humor July 2019


Given the beloved spot occupied by Dr. Seuss, aka Theodor Geisel, in the hearts of the countless millions who grew up with his children’s books, I sometimes wonder if taking a page out of Dr. Seuss’ cherished body of work would help make legal concepts easier to understand. For example, would law students get a better grasp of personal jurisdiction if, instead of Socratic discourse about Pennoyer v. Neff, they were taught an amusing, rhyming tale beginning “There’s a Pennoyer in My Foyer?” Recently, the 4th Circuit Court of Appeals made national headlines when it chose to invoke Dr. Seuss’ 1971 pro-conservation book The Lorax in vacating an environmental permit that would have allowed the Atlantic Coast Pipeline to cross two national forests. In Cowpasture River Preservation Association v. Forest Service, the court decided that the Forest Service had “abdicated its responsibility to preserve natural forest resources,” alarmed that the service’s earlier “serious environmental concerns” could be “suddenly, and mysteriously, assuaged in time to meet a private pipeline company’s deadlines.” Quoting Dr. Seuss’ The Lorax, the court concluded, “We trust the United States Forest Service to ‘speak for the trees, for the trees have no tongues.’”

But the 4th Circuit is hardly alone when it comes to judicial appreciation for the simple wisdom of Dr. Seuss. No less a figure than U.S. Supreme Court Justice Elena Kagan used another Dr. Seuss classic in her statutory interpretation of the Sarbanes-Oxley Act, and whether it applied in the case of a fisherman who asked his crew to throw undersized red grouper overboard after being caught by federal agents with the fish. In its 2015 plurality opinion in Yates v. United States, the court agreed with the fisherman’s argument that the fish tossed over were not “tangible things” within the meaning of this act, which meant the term to apply to things containing information, such as records or documents. In her dissent, Justice Kagan cited Dr. Seuss:

“A fish is, of course, a discrete thing that possesses physical form. See generally Dr. Seuss, One Fish Two Fish Red Fish Blue Fish (1960). So the ordinary meaning of the term ‘tangible object’ … covers fish (including too-small red grouper).”1

In fact, it seems that the beloved Dr. Seuss pops up regularly in judicial opinions. In his dissent in the March 1999 decision in Koehnen v. Dufour, Minnesota Supreme Court Justice Alan Page (now retired) cited the 1954 Seuss classic Horton Hears a Who!, arguing that the state’s laws regarding social host liability aren’t trumped if the situation involves alcohol sold to minors: “A person is a person is a person, and an illegal sale is an illegal sale is an illegal sale.” U.S. Magistrate Judge James Muirhead (now retired) channeled a different Seuss classic, Green Eggs and Ham, in warning a New Hampshire prison inmate who’d filed a $10 million lawsuit in 2007 complaining about the prison diet that attaching a hard-boiled egg to his complaint was a bad idea:

“I do not like eggs in the file. I do not like them in any style. I will not take them fried or boiled. I will not take them poached or broiled. I will not like them soft or scrambled, despite an argument well-rambled.”

Ordering the egg destroyed, Muirhead added, “No fan I am of the egg at hand. Destroy that egg! Today! Today! Today I say! Without delay!”

A cursory review of the legal landscape shows a rich appreciation for Dr. Seuss, particularly the statement from Horton Hatched the Egg: “I meant what I said/And I said what I meant./An elephant’s faithful/One hundred percent!” All told, three U.S. district courts, a U.S. bankruptcy court, two intermediate state appellate courts, and the Vermont Supreme Court have cited, quoted, or paraphrased that steadfast pachyderm’s line.2

The Vermont Supreme Court even added a Seussian flourish of its own in Burlington Electric Department v. Vermont Department of Taxes: “Where the Legislature ‘meant what [it] said and said what [it] meant,’ we must be true to the statute’s intent. See Dr. Seuss, Horton Hatches the Egg passim (1940).”

Horton was also referenced by the Supreme Court of Kentucky in a 1992 case involving the serious issue of whether the state’s manslaughter statute should apply to a defendant whose intoxicated driving caused an auto accident in which a pregnant woman was hurt and her unborn child fatally injured. In his concurring opinion in Jones v. Commonwealth, Justice Donald Wintersheimer wrote, “As observed by Dr. Seuss in the popular children’s story Horton Hears a Who!, it is abundantly clear that ‘A person is a person no matter how small.’”3

Our own U.S. 5th Circuit Court of Appeals has also indulged a fondness for Dr. Seuss—in this case the book Yertle the Turtle and Other Stories. It began its opinion in Davis v. Williams (a case about the discharge of public employees without cause) with a quotation: “Silence, the King of the Turtles barked back. ‘I’m king, and you’re only a turtle named Mack,’” and added, “Those in authority do not readily accept public criticism by their subordinates. They are particularly sensitive when employee censure brings their governance into public dispute.”4 In concluding its opinion about the limitations imposed on management’s prerogative to punish by the First Amendment, the court ended with another Yertle quote:

“And the turtles, of course…
All the turtles are free
As turtles and, maybe, all
creatures should be.”5

The U.S. 2nd Circuit Court of Appeals has cited Dr. Seuss’ The Sneetches and Other Stories. Calling the conflict between two Bankruptcy Code sections “reminiscent of Dr. Seuss’ intractable North-Going and South-Going Zax,” the court helpfully included a footnote quoting from this lesser-known work: “And it happened that both of them came to a place. Where they bumped. There they stood, Foot to foot, Face to face.”6

Other courts, including the U.S. 10th Circuit Court of Appeals and the Alaska Supreme Court, have used another Seuss classic, The 500 Hats of Bartholomew Cubbins, to opine on thorny issues like damages. Writing in Wheeler v. John Deere Co., the 10th Circuit said, “The district court could no more reinstate the damages portion of the first verdict than it could substitute the second jury’s award with a larger sum pulled out of a magically appearing hat. See Dr. Seuss, The 500 Hats of Bartholomew Cubbins (1938).”7 In Evans ex rel. Kutch v. State, the Alaska Supreme Court observed that “[T]he tort reform act already imposes an express cap on punitive damages; to read subsection (j) as placing a second cap on top of the first cap thus carries us into a Seussian realm.”8 And as one New York court sagely noted, “Unless you are Bartholomew Cubbins, wearing more than one hat will surely lead to trouble.”9

Some in our profession may cringe at the thought of judges citing Dr. Seuss, arguing that while his amusing scenarios and rhyming schemes are fine for children’s books, they just don’t belong in judicial opinions. But judges also have a responsibility to remain accessible to the public they serve, and no one can argue with the fact that—even more than two decades after his death—Dr. Seuss’ more than 43 books (and the TV shows and movies they’ve spawned) continue to impart valuable lessons to millions of young readers with their playful language and illustrations. I’m not suggesting we change the title of torts classes to “Oh, the People You’ll Sue.” But, when your heart is two sizes too small, lighten up and embrace Dr. Seuss’ timeless wisdom like Justice Kagan and so many other respected jurists.TBJ

 

Notes
1. 135 Sup. Ct. 1074 (2015).
2. Burlington Elec. Dep’t v. Vt. Dep’t of Taxes, 154 Vt. 332, 336 (1990); Graham v. Peter K. Yeskel 1996 Irrevocable Trust, 928 So. 2d. 371, 373 (Fla. Dist. Ct. App.)(Florida Supreme Court meant what it said and said what it meant); State v. Johnson, 510 N.W.2d 811 (Wis. Ct. App.)(trial judge said what he meant and meant what he said); Campero USA Corp. v. ADS Foodservice, LLC, 916 Fla. Supp. 2d 1284, 1288 n.2 (S.D. Fla. 2012); Hydro-Thermal Corp. v. Pro-Sonix, LLC, No. 07-C-918, 2010 WL 1441239, at *1 (E.D. Wis. Apr. 8, 2010); Draper v. Astoria Sch. Dist. No. 1C, 995 F. Supp. 1122, 1140 (D. Or. 1998) (referring to Oregon Legislature); and In re Bank of New England Corp., 404 B.R. 17, 36 (Bankr. D. Mass. 2009).
3. 830 S.W.2d 877, at 883 (Ky. 1992).
4. 598 F.2d 916, 917 (5th Cir. 1979).
5. Id. at 922.
6. In re Stoltz, 315 F.3d 80, 84 (2nd Cir. 2002).
7. 935 F.2d 1090, 1096 (10th Cir. 1991).
8. 56 P.3d 1046, 1077 (Alaska Sup. Ct. 2002).
9. Raiolo v. B.A.C. Home Loans, 29 Misc. 3d 1227, 920 N.Y.S. 2d 244 (Civ. Ct. 2010).



BrowningJOHN G. BROWNING
is a shareholder in the Dallas law firm of Passman & Jones. When he’s not practicing law, he has been known to read Dr. Seuss classics to his two grandchildren and to wear “Thing 1” and “Thing 2” matching shirts with his wife.

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