Chutzpah as a Legal Word

 (Because this is an excerpt from a larger article,
“Future Predictions About Legal Writing: Redundancies and Musings,”
footnotes start at 72)

by Kenneth Bresler
Scribes Journal of Legal Writing 2014–2015

Before I discuss chutzpah as a legal word, I’ll discuss it briefly as a Yiddish word – or rather, I’ll quote an authoritative source, Leo Rosten’s The Joys of Yiddish.

First, here’s Rosten on how to pronounce the word: “Pronounced KHOOTS-pah; rattle that kh around with fervor; rhymes with ‘Foot spa.’ Do not pronounce the ch as in ‘choochoo’. . . but as the German ch in Ach! or the Scottish loch.”⁷²

Now here’s an excerpt from Rosten’s entry on the word, which he spells without an h at the end:

Gall, brazen nerve, effrontery, . . . arrogance such as no other word, and no other language can do justice to. The classic definition of chutzpa is, of course, this:

Chutzpa is that quality . . . in a man who, having killed his mother and father, throws himself on the mercy of the court because he is an orphan.⁷³

Thus, the classic definition involves a legal proceeding. The word is almost made for the law. And judges and lawyers use it.

Chutzpah debuted in a reported judicial opinion in 1972, when the Georgia Court of Appeals used it in Williams v. State.⁷⁴ The word was the subject of a law-journal article that surveyed courts’ use of chutzpah and its variants, chutzpa, hutzpah, and hutzpa.⁷⁵ Courts have used the word in hundreds of cases. Many quote Leo Rosten.⁷⁶

A non-Jewish Justice was the first to use chutzpah in a Supreme Court opinion: Justice Scalia used it in passing in a concurring opinion in 1998.⁷⁷

The Supreme Court used it in 2005, quoting the Ninth Circuit Court of Appeals, which in turn was quoting one set of parties: “The Court of Appeals obliged petitioners’ request[,] . . .a request that respondents apparently viewed as an ‘outrageous act of chutzpah.’”⁷⁸ By the way, to call chutzpah outrageous is almost always redundant.

Chutzpah appeared again in a 2011 case, twice. In Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, a campaign-finance case, Justice Kagan wrote in her dissenting opinion, “Some people might call that chutzpah.”⁷⁹

The majority responded in a footnote: “The dissent sees ‘chutzpah’ in candidates exercising their right not to participate in the public financing scheme, while objecting that the system violates their First Amendment rights. . . . The charge is unjustified, but, in any event, it certainly cannot be leveled against the independent expenditure groups.”⁸⁰ All this discussion – yet no definition. The justices assumed that readers know the word and that they need not define it. But does it belong in a legal dictionary for the benefit of those who don’t know it?

The tenth edition of Black’s Law Dictionary was published in 2014 – and chutzpah is not in there. Nor are its variants, with or without italics. This noninclusion raises an interesting question: When is a word a legal word? Just because lawyers and judges use it doesn’t mean that it’s a legal word that belongs in a legal dictionary. On the other hand, just because nonlawyers use a word doesn’t make it a nonlegal word. Nonlawyers use church and churning, two words to which chutzpah would be a neighbor in the dictionary, and church and churning do appear in Black’s.⁸¹My sense is that chutzpah is a legal word. (My sense is lexicographically untrained, but then again, America has no degree programs in lexicography.)

Bryan Garner, the editor in chief of Black’s, has said that 2,500 potential new entries are awaiting the next edition.⁸² Perhaps chutzpah is among them.

But I’m not taking any chances, and I’m not waiting. I’m putting chutzpah into Bresler’s Law Dictionary, my online list of legal words that otherwise seem to have escaped definition. The word arrived in legal lingo long ago:

chutzpah. noun. Audacity, especially when an argument or position is advanced hypocritically, with unintentional irony, or with unclean hands.⁸³

⁷² Leo Rosten, The Joys of Yiddish 92 (1968).
⁷³ Id. at 93.
⁷⁴ 190 S.E.2d 785, 785 (Ga. Ct. App. 1972).
⁷⁵ Jack Achiezer Guggenheim, The Evolution of Chutzpah as a Legal Term: The Chutzpah Championship, Chutzpah Award, Chutzpah Doctrine, and Now, the Supreme Court, 87 Ky. L.J. 417 (1999).
⁷⁶ E.g., Williams, 190 S.E.2d at 785 n.1; Motorola Credit Corp. v. Uzan, 561 F.3d 123, 128 n.5 (2d Cir. 2009).
⁷⁷ Nat’l Endowment for the Arts v. Finley, 524 U.S. 569, 597 (1998) (Scalia, J., concurring).
⁷⁸ San Remo Hotel, L.P. v. City & Cnty. of S.F., 545 U.S. 323, 330 (2005) (citation omitted).
⁷⁹ 131 S. Ct. 2806, 2835 (2011) (Kagan, J., dissenting).
⁸⁰ Id. at 2820 n.6.
⁸¹ Black’s Law Dictionary 294–95 (10th ed. 2014).
⁸² Stephanie Francis Ward, Bryan Garner on Legal Neologisms and How “Black’s Law Dictionary” Keeps Up, A.B.A. J., July 7, 2014, http://www.abajournal.com/news/article/ podcast_monthly_episode_52.
⁸³ Bresler’s Law Dictionary, Clear Writing Co., http://www.ClearWriting.com/dictionary (last visited April 20, 2015).