Surely, not since “Holy $h*t, Man Walks on #&*ing Moon” has there been such a riveting headline, but hey, I noticed this and here it is. This is my three-thousand-three-hundred-and-fifty-first post, cut me some slack here.

The Omnicare opinion released today involved a securities-fraud case, and the issue was when a statement of opinion (e.g. “I believe this post is mildly amusing”) can be the basis for a fraud claim. Usually if somebody says “I believe,” that should raise a red flag that the person does not actually know, or that it’s not even a verifiable fact, so you shouldn’t rely on the statement. Not always, but that’s not what this post is about anyway. This is (first) just to point out what appears to be Justice Scalia being Justice Scalia in response to Justice Kagan using the pronoun “she” to refer to an abstract person.

Here’s Justice Kagan for the majority:

Section 11’s omissions clause, as applied to statements of both opinion and fact, necessarily brings the reasonable person into the analysis, and asks what she would naturally understand a statement to convey beyond its literal meaning. And for expressions of opinion, that means considering the foundation she would expect an issuer to have before making the statement.

Emphasis mine. Now here’s Justice Scalia in his concurrence:

The Court [i.e. Kagan] says the following:

“Section 11’s omissions clause, as applied to statements of both opinion and fact, necessarily brings the reasonable person into the analysis, and asks what she would naturally understand a statement to convey beyond its literal meaning. And for expressions of opinion, that means considering the foundation she would expect an issuer to have before making the statement.” Ante, at 17 (emphasis added).

The first sentence is true enough—but “what she [the reasonable (female) person, and even he, the reasonable (male) person] would naturally understand a statement [of opinion] to convey” is not that the statement has the foundation she (the reasonable female person) considers adequate. She is not an expert, and is relying on the advice of an expert—who ought to know how much “foundation” is needed. She would naturally understand that the expert has conducted an investigation that he (or she or it) considered adequate. That is what relying upon the opinion of an expert means.

Italics his, bold mine. I think his point is valid, but it sure seems like he took an opportunity to get in an unnecessary dig at the rookie’s pronouns. Great Odin’s raven! What a foofaraw!

I like the way Kagan writes, because it is informal and yet is still very clear (Scalia of course is also a good writer). Some would probably say too informal, or at least I’m surprised that Nino didn’t say anything about what I think is the first use in a Supreme Court opinion of the word “way” as an adverb: “Moreover, Omnicare way overstates both the looseness of the inquiry Congress has mandated and the breadth of liability that approach threatens ….” Totally!