7th Circuit

And you’d think it would be Justice Scalia. But you’d be wrong!

So what darkened this legal luminary?

If you guessed “shadowy intelligence services,” you’re right. Congratulations! ATL would like to send you your prize! You win ███████. Remember to ask for it by name.

Opinions get redacted or sealed all the time, but the latest from the Seventh Circuit is a doozy….

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Judge Richard Posner isn’t amused.

Please convey my congratulations to Bryan Garner on inventing a new form of arbitration. Two parties have a dispute; one appoints an arbitrator to resolve the dispute; the other disputant is not consulted. How beautifully that simplifies arbitration! No need for the parties to agree on an arbitrator, or for the American Arbitration Association to list possible arbitrators and the disputants cross out the ones they don’t like.

– Judge Richard Posner of the Seventh Circuit, in response to the latest barb dealt in his long-running dispute with Justice Antonin Scalia of the Supreme Court. In June 2012, Bryan Garner co-authored Reading Law: The Interpretation of Legal Texts (affiliate link) with Scalia, and Posner criticized it for “misrepresent[ing] case rationales.” Garner recently hired Keker & Van Nest partner Steven Hirsch to evaluate those criticisms, saying he wanted an “objective third party.” Posner wasn’t particularly impressed.

Picture of Banana Lady taken from Judge Posner’s opinion.

As it turns out, it was in fact a banana, and she was absolutely not happy to see Judge Posner.

The ridiculous isn’t entirely new to Judge Posner. He’s seen lawyers treating his courtroom as a schoolyard and issued benchslaps complete with pictures of men burying their heads in sand.

But he doubtless never expected to be writing an opinion chastising a woman in a banana suit….

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Here’s a sentence from a recent Seventh Circuit opinion:

[T]his case shows every sign of being an overzealous prosecution for a technical violation of a criminal regulatory statute — the kind of rigid and severe exercise of law-enforcement discretion that would make Inspector Javert proud.

This was a sentence from the dissent.

Amazingly, though, the majority voted to reverse the conviction. Judge Sykes, who authored the dissent, would have affirmed the conviction — though, presumably, not because she thinks a Javert-like prosecution is a model that the Department of Justice ought to aspire to.

It’s an odd day when such strong language appears in an opinion that supports a court of appeals affirming a district court decision. And this case, United States v. Abair, is odd. (And thank you, Professor Volokh, for pointing the case out!)

Why is the case odd?

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When I was a lawyer, I often fantasized about being in a non-fatal traffic accident to get out of work. Not “faking” a non-fatal accident, but actually allowing myself to be struck by a moving vehicle.

I didn’t like my job. But I’m no liar. I’m not like this guy who pretended he was too sick to go to work when he was really just unprepared…

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The defendants’ appeal brief is a gaunt, pathetic document (there is no reply brief). Minus formal matter, it is only eight and a half pages long. Brevity is the soul of wit, and all that, but still: the first seven and a half pages are simply a recitation of the history of the Georgia lawsuit, the settlement negotiations, and the present suit, along with questionable and irrelevant facts; and the tiny argument section of the brief — 118 words, including citations — states merely, without detail or elaboration, that the defendants do not possess the settlement funds and therefore can’t restore them.

– Judge Richard Posner, in an opinion ripping apart a brief submitted by David Lashgari, a Georgia lawyer attempting to appeal a contempt citation. Posner called Lashgari’s behavior “outrageous,” and his appeal “frivolous,” and issued a show-cause order as to why Lashgari should not be sanctioned.

(Keep reading to see Judge Posner’s entertaining opinion.)

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Staci here. We’re sure many of you have applied to clerk for or have actually clerked for federal appeals court judges. We’re sure that waiting for a response after you submitted all of your paperwork was simply agonizing.

If you got the job, congratulations; we bet you were absolutely elated. If you got rejected, you might have been disappointed. But if you got a rejection letter like the one we’re about to show you, you must’ve been downright, well, confused. While we’ve seen the good, the bad, and the ugly in federal clerkship rejection letters — see, e.g., here and here — we’ve never seen anything quite like this before.

This is something we think you’re going to want to take a look at. Call it “rejection via resignation”….

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Judge Richard Posner

From the Above the Law mailbag: “Is ATL ever going to call out Judge Posner for being so needlessly nasty to litigants?”

Ummm, no. I’m a big fan of Judge Richard Posner, who is brilliant and hilarious. (Yes, hilarious — if you doubt that, check out the awesome podcast that he and I did together, which you can download and listen to during your commute or at the gym.)

But in the interest of fairness, I will make this reader’s case. This correspondent cited the recent oral argument in Notre Dame v. Sebelius, which we alluded to yesterday, in which Judge Posner dispensed some benchslaps to Matthew Kairis, head of litigation in the Columbus office of Jones Day. The reader also mentioned the argument on remand in the Conrad Black case, alleging that Posner “was particularly nasty to Miguel Estrada, seemingly piqued that Estrada got him reversed by SCOTUS.”

Let’s focus on the Notre Dame v. Sebelius argument, since it just happened. How bad was it?

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This seems a better way to go than a hunger strike.

* O.J. Simpson is pursuing a hunger strike because he’s looking to die. If only he knew who the real killers were, they could help him out. [Radar Online]

* Dean I. Richard Gershon of Ole Miss Law thinks Elie is just wrong. [Law Deans on Legal Education Blog]

* In continuing Seventh Circuit benchslappiness, Judge Richard Posner got feisty with an attorney for Notre Dame who kept interrupting him. If this lawyer keeps it up, Posner’s going to treat his client like Alabama did a year ago. [Chicago Tribune]

* Comcast wants to buy Time Warner, pending DOJ approval. The DOJ wants to talk to Comcast, but they’re only available to talk between 10 and 10:15 on alternating Wednesdays. [ATL Redline]

* California and New Jersey have banned gay conversion therapy programs. Is that the best way to combat these schemes? [New York Times]

* A look at getting started as an entrepreneur. See, there’s hope after bailing on practicing law. [Big Law Rebel]

* Daria Roithmayr of USC Law thinks The Triple Package (affiliate link), the new book by Yale’s Amy Chua and Jed Rubenfeld, doesn’t hold water. I mean, since when are we holding academics to writing “scholarship” as opposed to “controversy bait”? Professors need to eat, after all. [Slate]

* A cop who got in trouble for bashing Obama online thought he was protected by the First Amendment. The court disagreed. [IT-Lex]

Judge Frank Easterbrook

Let’s play a game of circuit-court word association.

D.C. Circuit? Prestigious.

Ninth Circuit? Wacky.

Sixth Circuit? Vicious.

Seventh Circuit? Benchslappy.

If you question this assessment, please consider the latest benchslaps emanating from 219 South Dearborn Street….

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