High-profile cases get cited all the time by other courts and judges. In the zoning world, Euclid v. Ambler Realty Company, 272 U.S. 365 (1926), is a judicial favorite for the principle that land-use decisions pass constitutional muster when they have a substantial relation to the public health, safety, morals, or general welfare (2,727 citations). In equal protection cases, ditto the famous footnote 4 in United States v. Carolene Products, 304 U.S. 144 (1938), that explains discrimination against discrete and insular minorities should get heightened scrutiny (1,279 citations). And then there’s the administrative law deference principle in Chevron v. NRDC, Inc., 467 U.S. 837 (1984), which clocks in at a whopping 16,552 citations by other courts and judges.
Frequent citations to high-profile cases make sense. Euclid, Carolene Products, and Chevron, and others like them, set down legal principles that move the law in an important new direction.
How does this explain the First Circuit’s infatuation with United States v. Zaninno, 895 F.2d 1 (1st Cir. 1990)? The First Circuit has cited Zaninno at least 1,554 times. Although the case involves a colorful fact pattern about “a predominant figure in the so-called Patriarca Family of La Cosa Nostra,” as Judge Selya, the author of the decision, mentions in the introductory paragraph, the guts of the decision are mundane. The First Circuit shot down the defendant’s claims of error based on hearsay, improper warrants, sufficiency of the evidence, and postponing trial, and upheld his 30-year sentence in the slammer.
So why does the First Circuit cite to Zaninno so much? The end of the decision contains an Easter Egg on waiver of argument that has stood the test of time. As Judge Selya explains in Zaninno:
[I]ssues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived . . . It is not enough merely to mention a possible argument in the most skeletal way, leaving the court to do counsel’s work, create the ossature for the argument, and put flesh on its bones . . . Judges are not expected to be mindreaders. Consequently, a litigant has an obligation ‘to spell out its arguments squarely and distinctly,’ or else forever hold its peace.
The First Circuit’s love affair with Zaninno makes one thing clear — judges hate perfunctory arguments in briefs. If a legal argument says, “and by the way, the government violated my free speech rights,” or “the defendant violated thirteen common law principles and 16 statutes,” and says nothing else on those subjects, there’s a good chance the Zannino ax will fall.
Many other cases besides Zaninno stand for the principle that a litigant must raise an argument with substance or risk waiver. But judges have used Zaninno so frequently over the years that it’s become part of their language. Not unlike calling all flying discs frisbees, or all paper copies Xeroxes.
Sometimes, when a court finds language that it likes, it uses it again, and again, and again. I need go no further. Cf., e.g., United States v. Gordon, 875 F.3d 26 (1st Cir. 2017) (“We need go no further”) (Selya, J.); McDonough v. Aetna Life Ins. Co., 783 F.3d 374, 383 (1st Cir. 2015) (“We need go no further”) (Selya, J.); Fed. Refinance Co. v. Klock, 352 F.3d 16, 32 (1st Cir. 2003) (“We need go no further”) (Selya, J.); Witty v. Dukakis, 3 F.3d 517, 521 (1st Cir. 1993) (“We need go no further”) (Selya, J.); United States v. Gray, 814 F.2d 49, 52 (1st Cir. 1987) (“We need go no further”) (Selya, J.).