The Use of “Chutzpah” in the Landmark Guggenheim v. Epstein (2005) Case Heard at KMS
While the use of the term “Chutzpah” in the Federal Judiciary has been well documented by Jack (Achiezer) Guggenheim in his highly-regarded Kentucky Law Journal surrounding Justice Scalia’s watershed moment of breaking the Supreme Court’s “Chutzpah Barrier,” scant attention has been paid to the use of Chutzpah by the aforementioned author.
In the 2005 case, the defendant, Epstein, had indicated to the plaintiff that he intended to complete the reading of the said Law Journal piece by the completion of a specific Shabbat, coinciding with Fri-Sat. July 16-17. This statement was made in the parking lot of the Lamberton shopping center when both parties had completed transactions at the Royal-Ahold (Netherlands) subsidiary Giant Food corporation on the Thursday previous (July 15th). Neither party dispute this fact.
The defendant, at the time, had full intention to complete the reading, however between the Thursday evening “parking lot oath” and the Saturday morning “Kiddush” [also the first time that the word Kiddush has been used in American jurisprudence], the defendant’s sleep situation changed dramatically. He acquired only 3 hours of rest on Friday morning and combined with the fact that he was the host for 34 people for a sheva brachos [also the first documented use of Sheva Brachos in American jurisprudence] that it was not unrealistic for Guggenheim to absolve him of his commitment.
Guggenheim, however, saw it differently and demonstrated “chutzpah” in demanding that the defendant adhere to his original oath. Now, as Guggenheim pointed out in the seminal work on the term, “chutzpah” uniquely connotes positive and negative elements.
Epstein’s counsel, Lustman, intimated the negative aspect of Guggenheim’s position regarding the defendant’s commitment. Lustman suggested that given the 8 years or so that had lapsed between the printing of the Ky. Law Journal submission and July 17, 2005 combined with the fact that as a non-lawyer, Epstein, was unlikely to require this information at any point in the near future, a 1 week delay in Epstein’s completion of the essay would unlikely shake the foundation of the universe to its core.
Guggenheim held fast, having the temerity to suggest that Epstein could not be absolved.
However, in the positive connotation of the term “Chutzpah,” Guggenheim’s insistence and refusal to acquiesce on the commitment subsequently achieved the desired goal. As the KMS court recessed to deliberate, the matter was resolved that afternoon. Epstein was so moved by Guggenheim’s chutzpah to demand completion of the essay that he ultimately prioritized it, thereby finishing the essay before the end of the said Sabbath day.
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