Friday, October 23, 2009

In Re Ramon M. (Cal. Ct. App. - Oct. 22, 2009)

I've seen a lot of obscenities used in opinions published by the California Court of Appeal. Lots. They come from quotations, of course. Often by the defendant. When they say "f**k" in the transcript, for example, or to the police, we generally print the whole word.

But check out the top of page four of this opinion, which is authored by Justice Moore. In which Justice Moore says (and I'm copying the original): "When States asked why he had approached the African-American men, Ramon [the defendant] responded that he 'did not like [racial epithet] in his neighborhood.'"

So Justice Moore clearly deletes the n-word. Which made me wonder: "Why?"

Not that I'm necessarily complaining. I express no view regarding whether one should categorically refuse to use -- even purely as a description of what someone else said -- that particular word. Or any other word, for that matter. Some people, including appellate judges, print out the obscene word (or epithet). Others don't. It's a style issue.

But seeing what Justice Moore did made me wonder whether this was something unique to Justice Moore -- perhaps she's relatively prude (or formal, or careful; however you want to describe it), and hence does what she does as a typical practice.

But then I checked by looking at Justice Moore's prior opinions. Nope. It's not that. She's been historically willing to use all sorts of words. Earlier this year, for example, she quoted someone as using both the f- and b-words. (I personally abbreviate them, by the way, solely because I like to call this a "family blog," even though I strongly doubt there are very many minors who regularly peruse it.) Indeed, back in December, Justice Moore even authored an opinion that printed the same word at issue here -- the n-word -- plus the s-word to boot. And there are many, many others. Moreover, as far as I can tell, Justice Moore's never deleted the n-word and replaced it with "[racial epithet]" before this opinion.

So what changed? Arguably, those prior opinions of hers were unpublished, so maybe it's just she (and others like her) don't want to degrade the published pages of the California Appellate Reporter with various filth. But it could also be something about this particular word; there's a heightened sensitivity -- at least among some -- that this particular term should never be used, in any form, and perhaps that explains Justice Moore's decision. (She was, again, willing to use that same word 10 months ago, but perhaps she's a recent convert.)

Which then got me thinking beyond Justice Moore. What about everybody else in the California judiciary? Has there been a deliberate reduction in the number of times readers have seen the n-word used in judicial opinions?

So, because it's a lazy Friday, I checked it out. (Thank you, Lord, for being an academic for a living, and not having to bill these hours.) The n-word's been used by the California Supreme Court and California Supreme Court in 617 opinions (both published and unpublished) contained in Westlaw. Here's the breakdown for this year as well as the past five years:

2004: 52 times
2005: 66 times
2006: 52 times
2007: 68 times
2008: 41 times
2009: 49 times (thus far)

A couple of things stand out. First, there did indeed seem to be a noticeable dip in 2008 in how many times the n-word was used. My recollection is that this may perhaps have also been the peak of when people started to get very sensitive to even the recitation of this word and, maybe not entirely unrelated, was also the key year of Barack Obama. So maybe the dip in 2008 was a reflection of justices not using this word as much.

Of course, there might be other explanations as well. Maybe people in general weren't using this word as much in the several years prior to the opinion, so there was less of it to report. Though I doubt this is actually true, it's at least a possibility. Or maybe there were simply fewer opinions in general during the "down" years, though I doubt that as well. Or maybe it was just random. Though a 40% year-over-year drop seems a fair piece, and too coincidentally related to BHO, to be merely the result of chance.

Which brings me to my second observation. Notice the ebb and flow of what I readily concede is an admittedly incomplete data set. One year the number is high, the next year it's low, the next year it's high, and so on. It's as if there's an ongoing cycle here. Like you start using a word, get bored with (or jaded by) it, then (with prior disuse) use it more, then less, etc. Sort of like a kid who uses swear words because they're unusual and "jarring," but then gets bored, then back into them, etc. I wonder if there's a little bit of that going on as well? Or, again, whether it's instead that everything's simply random.

So I then looked at one last thing. What's the data everywhere? I used the ALLCASES data set in Westlaw (i.e., all state and federal cases) and looked at the use of this full-text word for each of the years above. Now, here, it may well be that data sets slightly change over time, unlike in the pure California example, as Westlaw gets more opinions in this database over various years. But with this caveat, here's the data:

2004: 291 times
2005: 352 times
2006: 459 times
2007: 454 times
2008: 422 times
2009: 391 times (so far)

So what we seem to see nationwide is a steady (noncyclical) rise since 2004, but then a drop in 2008 -- as in California, though not as pronounced. You then see, for 2009, a rise -- as we have seen in California, of the use of this word over the previous years, both absolutely (in CA) as well as in the entire nation. (While the 391 times thus far in 2009 nationwide is admittedly less than the 422 seen during 2008, don't forget that 2009 isn't finished, and the current figures suggest that the final national numbers for 2009 will bounce back up to around 455 -- this time in 2008, for example, there were only 362 references, less than this year's 391.)

So maybe there has been something going on, at least during the past two years. Maybe in 2008 we saw a heightened sensitivity to having this particular word in print, while in 2009 it seems we have either "gotten over it" or have had a backlash to the backlash.

So as we enter the weekend, these are my thoughts on the use of the n-word. Nothing from me that's normative. At least on this topic, I'll leave that to others. But purely descriptively, it looks to me like there's something going on here. Not only potentially with Justice Moore, but with a number of other folks as well.