Adam Liptak writes about a privacy law case that may be better known to you for its culinary reference in a dissenting opinion, perhaps, then the substantive issues. But stay with the story, because it does get to the legal issues…
In June, the metaphor of the turducken made its first appearance in American jurisprudence.
“It’s a bit like building a dinosaur from a jawbone or skull fragment,” a dissenting federal appeals court judge wrote of his colleagues’ expansive reasoning, “and the result looks more like a turducken.”
A turducken is a chicken stuffed into a duck that is then stuffed into a turkey. Amanda Hesser, writing in The New York Times Magazine in 2002, said that “a well-prepared turducken is a marvelous treat, a free-form poultry terrine layered with flavorful stuffing and moistened with duck fat.” But a good terrine is probably not the ideal model for a legal doctrine.
The dissenter was Chief Judge Alex Kozinski of the United States Court of Appeals for the Ninth Circuit, in San Francisco. He is a master of the dissent that might as well be a petition for Supreme Court review of the majority’s decision. This one, protesting his court’s refusal to rehear a case about the privacy rights of employees, said the law in that area had become a tangled thicket.
“It’s time to clear the brush,” Judge Kozinski wrote. “We didn’t undertake that chore today, but we’ll have to sooner or later, unless” — nudge, nudge — “the Supreme Court should intervene.”
Last month, the federal government took the hint and asked the Supreme Court to hear the case. Between the dissent and the government’s excellent track record in persuading the court to hear its appeals, it is a very good bet that the court will soon be dining on turducken.