Legal Yiddish

Judge Alex Kozinski & Eugene Volokh, "Lawsuit, Shmawsuit," 103 Yale Law Journal 463 (1993)

	     Searching the MEGA file in LEXIS reveals that "chutzpah"
	(sometimes also spelled "chutzpa," "hutzpah," or "hutzpa") has
	appeared in 112 reported [judicial] cases.  Curiously, all but eleven 
	of them have been filed since 1980.  There are two possible 
	explanations for this.  One is that during the last thirteen years 
	there has been a dramatic increase in the actual amount of chutzpah in 
	the United States--or at least in the U.S. legal system.  This
	explanation seems possible, but unlikely.

	     The more likely explanation is that Yiddish is quickly
	supplanting Latin as the spice in American legal argot.  As
	recently as 1970, the Second Circuit not only felt the need to
	define "bagels"; it misdefined them, calling them "hard rolls
	shaped like doughnuts."  All right-thinking people know good bagels
	are rather soft.{fn1}  We've come a long way since then.

	     The first reported use of "chutzpah" was in 1972, in an
	opinion of the Georgia Court of Appeals.{fn2}  We're happy to say
	it was quite apt: breaking into a sheriff's office to steal guns
	qualifies as chutzpah in our book.  The four times "chutzpah" was
	used in published opinions in 1973, the courts didn't even bother
	to give a definition.  And, as we said, it's been used over a
	hundred times since 1980.  During the same period, the word
	"temerity" (a woefully inadequate substitute) was used only about
	two hundred times, and "unmitigated gall" a mere ten.

	     Other Yiddish words have had tougher sledding.  Variations on
	"kibitz" have appeared in ten cases,{fn3} "maven" in four, "klutz"
	in three.{fn4}  "Schlemiel" (also spelled "shlemiel") comes up five
	times, but one is in a quote from testimony, which doesn't count,
	one is in the name of a book and two are descriptions of Woody
	Allen's screen persona.{fn5}  The only bona fide use was, believe
	it or not, in another Georgia opinion (and not by the same judge,

	     "Schlimazel" is nowhere to be seen, even when spelled as
	"schlimazl," "shlimazel," "shlimazl," "schlemazl," "shlemazel,"
	"schlemazel," or "shlemazl."  "Schmooze" appears only once, in--you
	guessed it--a Georgia case.  Unfortunately, the judiciary of that
	great state stumbled this time, both misusing the word and
	misspelling it as "schmoose."  We concede that Webster's permits
	this spelling, but what do they know from Yiddish?
	     There is, of course, one obvious question that must be on
	every reader's mind at this juncture: what about "schmuck"?
	Regrettably, we were stymied in our schmuck search by the fact that
	many people are actually named Schmuck.{fn7}  This is an
	unfortunate circumstance for researchers (and even worse for the
	poor Schmucks themselves).

	     We therefore can't report on the degree to which schmuck has
	worked its way into legal English, which is too bad, because
	schmucks are even more common in courtrooms than schlemiels,
	schmoozing, and chutzpah.  We can, however, mention that there's a
	U.S. Supreme Court case named Schmuck v. United States.  For what
	it's worth, the petitioner was a used-car dealer.{fn8}  And there's
	also People v. Arno, where the first letters of each sentence in a
	footnote spell out "schmuck" (apparently referring to the dissent). 

	     Just as we can't get much joy when a court uses "schmuck" to
	refer to a person named Schmuck, we also aren't very excited when
	it uses "kosher" to describe a deli or a piece of chicken.  That
	"kosher" appears over 800 times in LEXIS is therefore not
	particularly impressive.

	     But it's clear that "kosher" is used figuratively in quite a
	few cases, from United States v. Erwin's insistence that the law
	"tell the felon point blank that weapons are not kosher" to Texas
	Pig Stands, Inc. v. Hard Rock Cafe International, Inc., which
	concludes that "though not entirely kosher, Hard Rock's actions
	were not . . . swinish."  Pig Stands is somewhat atypical, though, as
	its reference to "kosher" is just one in a series of pork jokes.

	     Yiddish has also begun to appear in defamation cases.  A 1972
	New York case concluded that calling the food at a restaurant
	"ground-up schmutz" wasn't actionable because it was only opinion.
	     An Arizona court recently held the same about calling a
	building development a "cockamamie idea," as did an Illinois court
	about calling a business a "schlock operation."  The Illinois trial
	court consulted as a reference Leo Rosten's The Joys of Yiddish; it
	also reviewed the case law of New York, California, Illinois, and
	Florida (and why not Georgia?) to see if the word "schlock" had
	ever been the subject of a libel action.

	     Like many other historical inquiries, etymological questions
	often have no clear, unambiguous answer.  Is "kosher," for
	instance, even a Yiddishism at all?  Was it borrowed from Hebrew	
	via Yiddish, or directly from Hebrew?  "Put the kibosh on" can be
	found in two cases, but while some authorities (including our ears)
	claim it's Yiddish, the better view seems to be that it's not.

	     "Brouhaha" has been used in more than 80 cases, but it's
	unclear whether it is in fact Yiddish.  "Glitch" appears in over
	130 cases, but it might have been borrowed either from Yiddish or
	German (a difficult question, since the languages are so similar). 
	Moreover, perhaps because it's been in general use in engineering
	lingo for decades, it may now be no more a Yiddishism than "robot"
	is a Czechism.  Finally, "cockamamie" is unknown in European
	Yiddish, and has developed entirely in America--is it a Yiddishism,
	or an Americanism that happened to originate with American Jews?

	     The spread of legal Yiddish is often inadvertent; for every
	case that self-consciously cites Leo Rosten, there are ten where a
	word seems to be used just because it's the right word.  One of the
	authors of this very Essay has--entirely unwittingly--done this:
	the dissent from denial of rehearing en banc in White v. Samsung
	Electronics America, Inc. contains the only use of the word
	"schtick" in a reported case.  (As it happens, the law clerk who
	put it in was Irish Catholic.)  And it was only by accident that
	the authors learned of the novelty of this feat; a friend wrote to
	say he was surprised to see the word in a published opinion. 
	What's so surprising?  How else would you say it?

	     Where all this will go from here is hard to say.  "Chutzpah"
	is firmly ensconced, and, we're happy to say, usually spelled
	right.  Ch's are always better than mere H's, and the h at the end
	gives it just the right touch.  "Kosher," "kibitz," and maybe
	"maven" and "klutz" are looking good.  The "sch" words are iffier,
	but we think they've got a future.  Others, like "nudnik" and
	"meshugge," haven't made a dent, though they deserve better.

	     We return then to the beginning, to chutzpah.  The most famous
	definition of "chutzpah" is, of course, itself law-themed: chutzpah
	is when a man kills both his parents and begs the court for mercy
	because he's an orphan.

	     But there's another legal chutzpah story.  A man goes to a
	lawyer and asks: "How much do you charge for legal advice?"
	     "A thousand dollars for three questions."
	     "Wow! Isn't that kind of expensive?"
	     "Yes, it is.  What's your third question?"

	{fn1}  Day-old bagels are rather hard, but right-thinking people do
	not eat day-olds, even when they are only 10 cents each.

	{fn2}  The earliest reported case we've found that uses a Yiddish
	word (other than in a name or a literal quote) is In re Kladneve's
	Estate (N.Y. 1929), which describes Kladneve as "what is called in
	Yiddish a 'schmorer.'"  This is a puzzle.  To the best of our
	knowledge, there's no such Yiddish word, and "schnorrer"--the
	closest word that might fit--means "moocher," which doesn't make a
	lot of sense in context, and also isn't a very nice thing to say
	about the recently departed.  We know of no other cases before the
	1970's except Robison v. Robison (Utah 1964); Zannone v. Polino
	(N.Y. 1956); and In re Bodus' Will (Wis. 1949), all involving

	{fn3}  Zannone v. Polino (N.Y. 1956), is a case with a moral, a
	case of kibitzing at a card game turning into a knife fight and a
	lawsuit.  Boys and girls, take note!

	{fn4}  See also Klopp v. Wackenhut Corp. (N.M. 1992) (quoting one
	of the parties as contending "it had no duty to design the security
	station 'for klutzes and total idiots'").

	{fn5}  Woody Allen's characters have always struck us more as
	nebbishes than schlemiels.  "A [schlemiel] is always knocking
	things off a table; the [nebbish] always picks them up."  LEO

	{fn6}  MCG Dev. Corp. v. Bick Realty Co. (Ga. 1977).  The opinion
	starts with, "The right to amend is as broad as the Atlantic Ocean
	and as saving as the power of salvation," a nifty line, even if
	mere English.  Georgia also brings us "tsoriss," Banks v. State,
	(Ga. 1974) (describing "appellant's tsoriss"), "shammes," State v.
	Koon (Ga. 1975), and "gut gezacht" (Ga. 1976).  All four of these
	come from Judge Clark, the same one who first used "chutzpah."  See
	also United States v. Cangiano (2d Cir. 1974) ("schlock"); United
	States v. Scott (E.D.Wis. 1991) ("no-goodnik"); United States v.
	Mayersohn (E.D.N.Y. 1971) ("tzimmes"); Lerner v. Brin, (Fla. 1992)
	("rachmones"); State v. Stephens (Neb. 1991) ("Better the majority
	should worry about its umfarshtendenish of Rule 404(2), not	
	Stephens' chutzpah."); cf. David Margolick, At the Bar, N.Y. TIMES,
	June 26, 1992, at B8 (motion using the word "dreck" arouses judge's

	{fn7}  The same happens to be true of "putz" and of "mensch."  We'd
	much rather be named "mensch" than "schmuck."  Oddly, though, a
	search for NAME (SCHMUCK) found 59 cases and NAME (MENSCH) found
	only 43 cases.  Perhaps this is because there are more schmucks
	than mensches in the world; but wouldn't the real schmucks change
	their names so as to better fool people, and real mensches change
	theirs out of modesty?  Besides, the true schmuck-mensch ratio is
	much higher than 59 to 43.

	{fn8}  Another little surprise: searching for "goy" revealed dozens
	of people named "Goy."  How come?  Why would a Jew be named Goy? 
	And why would a goy call himself a goy?  Cf. Gentile v. State Bar
	(U.S. Sup. Ct. 1991).  Go figure.

		                               -- Eugene Volokh, UCLA Law

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