Not Really Kafka, just Kafka-esque

Not Really Kafka, just Kafka-esque

Exhibit #1: Crime Scene at Old MacDonald’s Farm

Flies in the buttermilk

Shoo fly shoo!


Flies in the buttermilk

Shoo fly shoo!


Flies in the buttermilk

Shoo fly shoo!


Skip to my Lou my darling

This traditional children’s nursery rhyme seemed innocent enough until the flies made a federal case out of it. Few realized then that Flies v. Old MacDonald would become a rigorous litmus test for future Supreme Court nominees. Offshore Law Review Quarterly has published a summary of the case, and, with their implied verbal permission, I’ve reprinted it below.

Case Review: Flies v. Old MacDonald, (9th Cir 2005).

Case Sensitive: yeS.

Issues: Constitutional Law – First Amendment – Right of Assembly. Also Contract Law.

Finding: Ninth Circuit Court holds the “shooing” of flies as constitutional.

Summary of Events: On April 4,2005 Old MacDonald discovers flies in the [his] buttermilk and repeatedly requests they shoo [leave].

The Law: Several intersecting themes abound here. The flies’ Right of Assembly, Old MacDonald’s right to unmolested buttermilk and the public’s right to uncontaminated buttermilk.



It has been said the sum of mankind’s supremacy is not so much his ability to control nature, but his ability to harmonize with it. To that end it is instructive to study Flies v. Old MacDonald and its precedent setting decision whereby the court struck down the lawful right of assembly by a lot (as in the sense of an ‘assortment’) of unimproved flies.  

The case arose when, a lot of flies, engaged in the act of being flies, claimed they were forcibly evicted from Old MacDonald’s buttermilk without just cause or due notice; and before they had gained sufficient nutriment to continue doing their business as flies. This, they allege, degraded their ability to carry out their mission as flies.

Both parties to the suit stipulated a familiarity with the nursery rhyme “Skip to my Lou my Darling,” where, against the backdrop of a social compact known as the Social Compact, worldly pursuits are merrily presented as irreconcilably opposable. That is, the flies feel justifiably entitled not so much to Old MacDonald’s buttermilk per se; but to “the” buttermilk or a lot (emphasis added) of worldly buttermilk.

Old MacDonald, however, maintains the (his) buttermilk is justly created by his (his) own good labors and should be his (the) to enjoy, free and clear of any encumbrances including those placed on it by flies. “You see,” his council argued, “the prosecution’s ‘one world, one buttermilk argument’ just won’t fly (no emphasis added). This is not some phantom buttermilk to be toggled on and off at a polemicist’s whim, but rather it is hard earned corporeal buttermilk whose cold and wet tactility lends perfect credence to its nowness,” they hallucinated.

Old MacDonald verily believed he had a verbal contract with their leader or “Lord of the Flies” whereby they could freely enjoy his rich bounty of barnyard dung if they left his buttermilk unmolested. All evinced perfect performance until April 4, 2005 when, after witnessing the flies in the buttermilk, Old MacDonald felt the verbal contract had been breached. As a remedy to the flies in the buttermilk, he elected to evict them by exclaiming, shoo fly, shoo!  He did so with great emphasis (emphasis added).

When Old MacDonald apprehended (as in bore witness to) the flies in the buttermilk, one can readily imagine his horror and easily understand his chosen remedy; namely to “shoo fly shoo.” However a semantic disparity arises at this juncture. Are the flies to be treated jointly or severally? Old MacDonald is sending mixed messages. While comprehending “flies” (plural emphasis added) in the buttermilk, his remedy is “shoo fly (singular emphasis added) shoo.” This is confusing to say the least. How do you disperse one fly? What can one reasonably expect an assembly of flies to do? And finally, although it has little bearing on this case; why is it the Museum of Tolerance offers free admission to everyone except Puerto Ricans.

In any event all agreed that:  Old MacDonald has a farm. It’s in Ohio. And on this farm he has some flies. It’s in Ohio. With a buzz, buzz here and some buttermilk there. Here a fly, there a fly everywhere a fly, fly. Old MacDonald has a farm. It’s in Ohio.

Thirty-two years ago, when the case or Nursery Rhyme was first brought to the attention of Mother Goose’s court, it was sent back to the Children’s Reading Project without comment. Now the staunch Right-to-Buttermilk people have reintroduced it to a friendlier maggot-packed court.

The substance of the case revolves around whether or not the flies, as creatures of nature, have a right to the buttermilk or, from their perspective, whether Old MacDonald has unlimited rights to his buttermilk. They are clearly both desirous of the buttermilk (again, as in the nursery rhyme, worldly pursuits are merrily presented as irreconcilably opposable). Does the higher functioning Old MacDonald (washes behind ears; knows something is backing up when he hears that beeping sound) have complete and unassailable rights to his buttermilk or, as implied in the Social Compact, must he freely share his societal lucre with others in the animal kingdom (see Sheen v. The Chicken Ranch).

By mutual consent we know there are flies in the buttermilk. As to their disposition we are unsure. For example, to what degree are they in the buttermilk? Are they submerged in the buttermilk and hence drowned, thereby rendering impossible the admonishment to “shoo.” Or are they merely resident in the vicinity of the buttermilk. This was a central question rendered moot when Old MacDonald suggested combining the buttermilk and the flies to make butterflies. This matter was referred to Dr. Moreau.

As in the case of Gobbledygook v. Legalese whereby the court couldn’t understand either one of them, so to may this case bemuse rather than enlighten. We hereby review Flies v. Old MacDonald in full knowledge that justice isn’t so much blind as it has early onset Alzheimer’s.


The Flies Petition:

In arguments before the court, the plaintiffs attorneys presented a solid if unglamorous case contending, among other things that, “They are flies handsomely engaged in the business of being flies, and attending to buttermilk is one of a constellation of activities that flies do. An a priori assumption, such as flies will always seek buttermilk; cannot be redressed. For example, gravity does not grant waivers to those who would prefer to be more loosely tethered to earth. Gravity is relentless and perfect in applying its gravitational force. That’s its duty. Jenny Craig clients would love relief from its omnipresent force. It ain’t happenin’. Again, the best we can hope to achieve is to harmonize with nature, not to control it. Gravity is as gravity does.  Why should we expect anything else from flies?

“From the flies’ perspective this is no one’s buttermilk, but merely neuter buttermilk they have come upon within the course of conducting their business as flies. In their world they have no possession and therefore recognize no possession in anyone else’s world – Old MacDonald’s included. Their occupation of the buttermilk is both incidental and central to their flyness. In substance the case is more about Hegelian realities and less about ‘shooing.’ [Ed Note: At this point the lawyer put down his bong.] We are willing to grant relief to Old MacDonald, but only if separate and equal buttermilk accommodations are provided. And, as we recognize no trans-species contracts, any so-called verbal contract with the Lord of the Flies is null and….that thing where it doesn’t count anymore. As vassal flies, if I may wax feudatory, we are determined to maintain our right of assembly by whatever means necessary, although we strongly feel this entire incident is probably a matter for the courts to decide.”


Judge’s Interjection:

That’s what we’re doing here. This is a court. You’re in court.


The Flies Petition Cont’d:

“Perfect then. Let me continue. Although like many pests, we flies enjoy the rich wellspring of lactose emolument, we are not flies in the ointment. We are merely flies in the buttermilk. Additionally, any mention of a contract between that fatuous Goldblum, who fancies himself the Lord of the Flies, and Old MacDonald is preposterous. Goldblum has the reasoning power of lint and is non compos mentis. He has obviously flown too close to the bug zapper. Moreover he has compound eyes and therefore would’ve been entering an agreement with 512 separate Old MacDonalds. Clearly the contract is null and….that other thing. And finally, although Goldblum is a registered Republican in Broward County, FL, he speaks for no one but himself.

“In an abstract sense the flies have always found Old MacDonald to be ‘most companionable.’ More specifically, whenever Old MacDonald was present, they knew he was there. He registered with them and they greatly prefer the warmth and nourishment of a collegial relationship than the chill and decay of an adversarial relationship.”


Old MacDonald’s Outburst?:

“Collegial relationship? They’re pestilential flies, not nourishing colleagues damn it! Now git dem the hell out of my buttermilk,” ranted a moonshine-fueled Old MacDonald before the bailiff restrained him. [Ed note: In a peculiar twist, high-speed courtroom cameras indicated it was actually the bailiff who ranted and Old MacDonald who restrained him.] [Author’s note: Is this story really any more far-fetched than how babies are made? OK then – read on]


The Flies Petition Cont’d:

Now, as to the shooing of my clients: Having established my clients unalienable right to have assembled in the buttermilk, any form of eviction, be it shooing, swatting or zapping, is not only contemptible, but illegal as hell. I have reliable moo-say evidence from unimpeachable cows that Old MacDonald’s breath reeked of moonshine that fateful Monday.


Judge’s Interjection

Hold on counselor. As I’m sure you know, hearsay evidence is inadmissible.


The Flies Petition Cont’d:

I didn’t say it was hearsay evidence. I said it was moo-say evidence. Allow me to continue. We contend that not only was “shooing” a threat, but it was an imminent threat for it was repeated 3 times. Each time it was repeated more menacingly than the first. And each time Old MacDonald reset the unacceptable condition and his preferred abatement, as when he ferociously bellowed:


Flies in the buttermilk

Shoo fly shoo!

[Old MacDonald apprehends the flies’ status quo vis-à-vis the buttermilk and once again reaffirms his desire to be rid of them:]

Flies in the buttermilk

Shoo fly shoo!!

[As the flies have failed to accede to his primary and secondary admonishments, Old MacDonald restates their imperfect performance and reissues a tertiary, albeit similar, remedy:]

Flies in the buttermilk

Shoo fly shoo!!!

[As in the case of Griswold v. His Mittens where the court found his mittens were indeed left on the radiator too long, Old MacDonald is flummoxed by the unresponsiveness of the flies and, in a spasm of abject disgust, issues his final cryptic statement to a barn full of animals:]

Skip to my Lou my darling.

We are encouraged by Old MacDonald’s ‘Skip to my Lou my darling’ pronouncement and view it as a basis for settlement. Until then we move for immediate dismissal and complete restoration of dung privileges.


Judge’s Response:

You folks brought the case. You can’t move for dismissal you idiot. Your clients, however, are free to enjoy the excremental lucre ad infinitum.


The Defense Weighs in: Jurisprudence or Juristupid

While we would never attempt to abridge, limit or snooker the First Amendment right of assembly, we do draw a bright line between lawful assembly and criminal trespassing. Flies are known irritants whose societal contribution is limited to reminding us just how annoying this world can be; and as such they are entitled to no milk of human kindness – let alone buttermilk. That they are one of God’s creations is a non-starter. Let us not forget, Stalin (if you believed his mother) was also one of God’s creations and certainly was entitled to nothing but ignominy or, in southern states, perhaps ignominy and grits

The prosecution agrees with the defense that a first amendment matter, namely the right of assembly, is at issue. But we note the first amendment reads “right of the people to peaceably assemble,” and not the right of the flies to peaceably assemble. We believe the framer’s of the constitution meant to conspicuously exclude all non-people from peaceably assembling, especially flies and particularly slaves. God forbid a slave was found in the buttermilk. He wouldn’t be shooed. He’d be flogged. Eventually a great Civil War was fought over the issue. We hope the issue of flies in the buttermilk is not as apocalyptic. [Note: Jefferson flirted with an amendment specifically excluding gloom from our shores but abandoned it for want of enforceability. Jefferson’s theme was later embodied in the Harold Arlen classic: “Forget Your Troubles, C’mon get Happy.”]


The Defense Cont’d:

Clearly, the defense argued, Old MacDonald is conveying an unambiguous message – The flies must go! They are an unwanted pestilence whose presence compromises the health of others as well as the salability of the buttermilk. We maintain that no threat was conveyed or implied; merely an emphatic (emphasis added) encouragement to “Shoo fly shoo.” Plainly, Old MacDonald’s “shoo” amounted to nothing more than an earnest request for the flies to vacate the compromised dairy product and to relocate away from the buttermilk. When the request was refused our aggrieved client merely advanced towards the buttermilk to investigate the flies’ implacability in resisting his entreaties. Again, Old MacDonald is issuing a clarion call – The flies must go! The court will note that no violence of any sort was displayed or manifested. It’s not like we were using flypaper or bug zappers. That the flies did disperse was incidental to any act on the part of our client. Grant it, their abandonment of the buttermilk did serve his purposes, although Old MacDonald would’ve preferred reasoning with them.

“Since the flies obviously recognize the buttermilk as a high value target, shouldn’t they recompense Old MacDonald for its use? The say they disavow possession in themselves and others. Do they still feel this way when gorging themselves on someone else’s buttermilk? This argument is defective at best and self-serving at worst. After all, flies do have a word for ‘unconscionable.’ Wheedling maggots! Don’t they understand my client is not a husbandmen born to superintend buttermilk. His destiny also involves baling hay and shoveling dung.


Closing Arguments:

Defense: I’m double-parked. Can we get on with this?

Plaintiff: By creating barriers, whether mechanical (lids) or verbal (“shoo”) to being “in the buttermilk,” you are summarily denying a constellation of rights to an entire order of insects (in this case diptera). This cannot stand for ultimately their freedom is our freedom.

Judge’s Response: “Holy Sh*t! What the Kafka are you talking about man? They’re flies damn it! Flies I say! Now shoo – the lot of you.” He banged his gavel three times (emphasis added) and ruled in favor of Old MacDonald.

Next Case: Rock-a-bye Baby v. Broken Bough



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