by: Peter J. Gallagher (@pjsgallagher) (LinkedIn)
Continuing with a Bruce Springsteen themed week as I return to regular blogging . . .
A few years ago, I wrote an article — Courts Can Make Better Use of 'The Boss" — about judges citing Bruce Springsteen's music. Here are the opening paragraphs:
Springsteen usually comes in third — behind Bob Dylan and the Beatles and slightly ahead of Paul Simon — on the list of musicians whose lyrics are most frequently cited in legal articles and judicial opinions. Several law review articles, and at least one symposium, have been dedicated to the characters in his songs, particularly those on the margins, living in the darkness on the edge of town.
These individuals are appealing to law professors and commentators, particularly those interested in social justice, because, as professor Abbe Smith noted in her article “The Dignity and Humanity of Bruce Springsteen’s Criminals,” Springsteen “takes the least popular, least sympathetic among us, and offers up their stories to teach us something about ourselves.” However, when judges cite Springsteen, something seems to get a little lost along the way.
The article then noted how one judge used the lyrics to "No Surrender" to describe a party's approach to discovery and another quoted "Badlands" in an insurance dispute about bags of coffee. Since I wrote this article, a few more judges have quoted Springsteen in their opinions, with mixed results.
One of the recent cases involved a repeat player! In my article, I noted that, in a 2011 decision, a Florida federal court judge had compared a party’s aggressive approach to discovery to the song "No Surrender" from "Born in the U.S.A.": “A ‘no surrender’ mentality may be perfectly appropriate for a Bruce Springsteen rock and roll song, but it is frequently unhelpful in litigation, as illustrated by the unfortunate scenario here.” Four years later, the same judge made a similar comparison in a different case:
In the well-known “No Surrender” song released on his “Born in the U.S.A.” album, Bruce Springsteen noted, “Well, we made a promise we swore we'd always remember, no retreat, baby, no surrender.” Springsteen's “no surrender” philosophy may be fine for a rock and roll song about the importance of being true to one's own dreams and beliefs, but it is frequently unhelpful in litigation. It is particularly inapplicable and inappropriate here.
Miami Yacht Charters, LLC v. Nat'l Union Fire Ins. Co. of Pittsburgh Pennsylvania, 2015 WL 520846 (S.D. Fla. Feb. 9, 2015). Kudos to the judge for citing Springsteen, but I am still not sure if the comparison fits.
In several other recent cases, however, the references to Springsteen were a better fit:
- a California judge referred to "57 Channels (And Nothin' On)" when sympathizing with cable customers in a putative class action against the cable companies, among others, over licensing fees that increased the customers' bills: "With apologies to Bruce Springsteen, we appreciate the lament of cable television subscribers who feel that although they now receive 10 times 57 channels or more, mostly nothing's on that they wish to view." Fischer v. Time Warner Cable Inc., 234 Cal. App. 4th 784, 798 (2015); and
- a federal judge in Pennsylvania cited "Glory Days" as an example of "a middle-aged man's wistful recollection of his youthful vigor." Flood v. Nat'l Collegiate Athletic Ass'n, 2015 WL 5785801 (M.D. Pa. Aug. 26, 2015).
As I was a few years back, however, I remain surprised at the lack of references to Springsteen's music from New Jersey state or federal court judges.