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This Is the Best Opinion About Inflatable Rats You'll Ever Read

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By Casey C. Sullivan, Esq. on August 23, 2016 7:00 AM

'Rats. This case is about rats.' And so begins Seventh Circuit Judge Frank Easterbrook's finest judicial opinion, his Marbury v. Madison, his Brown v. Board of Ed., his Fisher v. Lowe.

Well, maybe that's going a bit far. But for a case about rats, this one from Easterbrook is pretty good.

Giant, Inflatable Rats

What entered the Seventh Circuit as a dispute over gray, pock-marked, grimacing, inflatable rats, exited a shining example of judicial writing. We could recite the background, but we'd not be able to do it justice. Instead, we'll let Judge Easterbrook's brilliant opening lines speak for themselves:

This case is about rats. Giant, inflatable rats, which unions use to demonstrate their unhappiness with employers that do not pay union-scale wages. Cats too -- inflatable fat cats, wearing business suits and pinkie rings, strangling workers.

What imagery, what cadence, what judicious use of the sentence fragment.

These cats and rats made their way before Judge Easterbrook (and his colleagues, Chief Judge Diane Wood and Judge Richard Posner) after the city of Grand Chute, Wisconsin ordered the Construction and General Laborers' Local Union No. 330 to remove the menacing inflatables, saying they violated a city law against private signs on public land.

Because the rats and cats were staked to the ground, the city determined that they qualified as structures. Had they been held down by ropes, floated like balloons, or mounted on the back of a truck, there would have been no problem. But the stakes were too much. The union sued, alleging that the city law violated its First Amendment rights.

A Case Mooted Before Its Time?

Easterbrook's opinion was certainly well put together, but the case the Seventh Circuit was presented with was not. And those oversights left the court with little to decide. "Unfortunately, neither the district court nor the parties considered the possibility that this case may be moot," Easterbrook writes. Possible mootness was overlooked despite the fact that the project was complete, the picketing was done, and the law itself repealed.

Yep, without anyone mentioning it to the court, the town had changed the ordinance, severely undercutting arguments that the dispute was "capable of repetition yet evading review."

Like a giant inflatable rat parked across the street, these errors couldn't go unnoticed. Easterbrook remanded the case to the district court, to determine if it was still viable. Only if a valid controversy still remains can the union march back into court, a veritable Pied Piper of inflatable agitprop and First Amendment claims.

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