Richard Posner Richard A Posner Above the Law Legal Blog.jpgFew things make us happier than when judges administer benchslaps to either colleagues or litigants. When the judicial power of the United States is deployed to diss, the result is fun for the whole family.
Heck, bench-slaps can even make tax law enjoyable! If you doubt this proposition, check out Judge Posner’s recent opinion in Kohler Co. v. United States (PDF).
Here are a few excerpts. We’ve pulled them out of context, and we won’t bother to get into the complex facts of the case; but the benchslappery is still evident:

“How to choose between adversaries’ valuations when both are manifestly erroneous?”

“[The IRS's effort] to prove that the pesos were indeed worth $19.5 million fell pathetically short of the mark….”

“[C]linging stubbornly to its untenable valuation, [the IRS] suggested no alternative to $19.5 million. It played all or nothing, lost all, so gets nothing.”

Way harsh — but at the same time, direct and matter-of-fact. The straightforward nature of Posnerian benchslaps is what makes them so elegant, effortless, and enjoyable.
This latest benchslap from Judge Posner calls to mind our prior observations about his writing style:

The Posnerian prose style is wonderfully dry, and Judge Posner’s amazing writerly feat is his generation of delight from desiccation. The Giant Hedgehog doesn’t laugh at his own jokes, which just makes them funnier. And when he cuts you down, with a clean slice of his linguistic lightsaber, his face bears no expression. It’s all done with a clinical elegance; disdain is a dish best served cold. Magnificent!

With most judges, you can see the benchslap coming a mile away. They take forever to wind up that slapping arm, and when they make contact with their target, you can hear the “whack” for miles. With Judge Posner, in contrast, you’re benchslapped before you even REALIZE you’ve been benchslapped.
This makes perfect sense. Why? Judge Posner’s hand is too good for your face. And the national treasure known as the Posnerian Brain shouldn’t be wasted on benchslappery, since it really could be put to more productive use.
Like having electrodes hooked up to it, so we can finally end America’s dependence upon foreign oil.
Kohler Co. v. United States [Seventh Circuit (PDF) via How Appealing]
Posner Slams IRS’s “Pathetic” Position in Mexican Debt-Equity Swap Case [TaxProf Blog]
The Hilarious Hedgehog: Judge Richard Posner [Underneath Their Robes]


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