Not a Jujube

Apparently, that's so of qualified privileges and of the All Writs Act -- but what on earth does that mean?

|The Volokh Conspiracy |

From Judge Selya, in Havlik v. Johnson (1st Cir. 2007):

A qualified privilege is not a jujube that, like some magical charm, wards off liability for defamation, come what may. In Rhode Island, as elsewhere, such a privilege may be abrogated if the plaintiff proves that the privilege-holder published the offending statement out of spite, ill will, or malice.

And from the same judge in Trenkler v. U.S. (1st Cir. 2008):

Still, each attempted use of an extraordinary writ in connection with post-conviction relief must be judged on its own merits. The strictures of section 2255 cannot be sidestepped by the simple expedient of resorting to some more exotic writ. Put bluntly, the All Writs Act is not a jujube. At most, it constitutes "a residual source of authority to issue writs that are not otherwise covered by statute."

What does that mean? And how is it putting it "bluntly"? I know about the fruit and about the candy, but I just can't figure out how they fit here.

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10 responses to “Not a Jujube

  1. It means “magical talisman” in this context. In eastern medicine and religion, the jujube plant had magical powers, both as an edible and the wood when carved.

    You’re looking for old eastern China, and some migration into Japanese Shintoism.

  2. My guess is that the judge is trying to refer to a juju charm. It’s sometimes written as ju-ju or joujou. I’m not aware of it being referred to as a “jujube” but maybe it’s an obscure usage?

    1. I think that’s right. I’ve never seen “jujube” used for “juju” or its other known variants. Maybe we should send the judge a case of JuJubes, the way the Raisinets people sent a case to Mel Brooks for Harvey (that’s “Hedly”) Korman’s reference to them in Blazing Saddles.

      1. A box of jujubes with a joujou as a prize toy?

    2. Yeah, I think the judge confused the term “jujube” which can mean either (1) the red or Chinese date, a datelike fruit from a tree in Asia, often claimed to have medicinal qualities, eaten to relieve coughs, or (2) a sweeten fruit flavored lozenge or candy, also often with cough medicine added, and the term “joujou”, which can either mean a small toy or plaything or a magical talisman.

  3. On the one hand, Judge Selya himself defined a “juridical jujube” as “a delicately flavored bankruptcy issue of novel impression”. In re Dein Host, Inc., 835 F.2d 402, 403 (1st Cir. 1987). Which sheds little light on these passages, and tends to reinforce the idea that it may be a malapropism.

    On the other hand, three other federal judges have quoted Selya’s description of the All Writs Act (including he “put bluntly” language), so I guess it’s clear enough to them. (In all the other cases I found on Westlaw, it was clear the reference was to the fruit or candy.)

  4. All of which just goes to show that a legal education does not prevent one from being dumb (says I, a lawyer).

    1. It’s surprising that non-lawyers assume lawyers are subject matter experts in so many fields and trust judges to adjudicate important cases.

      When you realize most lawyers have undergraduate degrees in political science, history, or pre-law this assumption really flies out the window.

      1. Unfortunately, many lawyers assume that they are experts in fields in which they are completely uneducated (e.g. Elizabeth Warren and finance).

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