Richard Posner

Was Judge Posner a Dodo in His Ostrich Opinion?

By David Lat

Of course not! But the headline got your attention, didn’t it? The notion of Judge Richard Posner as being anything other than a genius will certainly make people sit up and take notice. There’s a reason why there’s a Facebook group called Richard Posner for Philosopher King (of which I am a proud member).

It should be noted, however, that Judge Posner’s opinion in Gonzalez-Servin v. Ford Motor Co. was not 100 percent perfect. It initially contained some infelicitous wording — which has since been fixed.

Let’s look at the language that was perhaps imprecise….

UPDATE (4 PM): Additional comment from Judge Posner, added after the jump.

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A Reverse Benchslap? Chastised Lawyer Lashes Out at Judge Posner

By David Lat

On Thanksgiving Day, while you were enjoying your turkey (or tofurkey), we wrote about a different bird: namely, the ostrich. In a somewhat snarky opinion, Judge Richard Posner of the Seventh Circuit compared a lawyer appearing before him to an ostrich: “The ostrich is a noble animal, but not a proper model for an appellate advocate. The ‘ostrich-like tactic of pretending that potentially dispositive authority against a litigant’s contention does not exist is as unprofessional as it is pointless.’”

Ouch. Judge Posner even included a photo (above right) of a man in a suit burying his head in the sand.

What did the lawyer in question, David “Mac” McKeand of Houston, have to say for himself? And what did McKeand have to say about Judge Posner?

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Thanksgiving Greetings from Above the Law!
(And a bonus benchslap from Judge Posner.)

By David Lat

Happy Thanksgiving, from your friends at Above the Law. As always, we give thanks to our readers, our tipsters, our advertisers, and even our commenters.

We also give thanks to Judge Richard Posner. This brilliant and hilarious jurist has just given us something to chuckle over as we munch on our Thanksgiving turkey.

This opinion by Judge Posner, handed down yesterday, could be viewed as “giving the bird” to an offending attorney. And the bird in question is not a turkey. Can you guess which bird is involved?

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(And a bonus benchslap from Judge Posner.)“

Grammer Pole of the Weak: Backburner for the Bluebook?

By Staci Zaretsky

Welcome to the latest edition of Above the Law’s Grammer Pole of the Weak, a column where we turn questions of legal writing and English grammar and usage over to our readers for discussion and debate.

Last week, we found out that only 29% of our readers lie back and think of England when dealing with punctuation and quotation marks. Makes you proud to be an American, doesn’t it?

This week, we turn to a hotly-debated issue among legal professionals: the use of the Bluebook. At least one federal judge hates it, joining hundreds upon thousands of law students to date.

Should we consider putting the Bluebook on the backburner in our legal writing?

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Grammer Pole of the Weak: Split Infinitives

By David Lat

In an event I did a few years ago at the University of Chicago with Judge Richard Posner (check out the podcast here), Judge Posner tossed out a delicious little blind item. He mentioned a federal judge in Chicago who would fire law clerks for what she viewed as a very grave offense: splitting infinitives in written work product.

But is splitting infinitives really such a crime?

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The Price of Prestige: Clerkship Application Chaos

By David Lat

Several prominent judges, like Richard Posner (left) and Alex Kozinski (right), hire 'off-plan.'

Over the weekend, we mentioned a very interesting New York Times article on the chaotic state of the clerkship application process, and said we’d have more to say about it later. Well, now is later, quite a bit later — so let’s discuss.

The piece — by Catherine Rampell, who has written about the legal world before — paints a depressing picture of a dysfunctional system. Rampell reports that the clerkship process “has become a frenzied free-for-all, with the arbiters of justice undermining each other at every turn to snatch up the best talent.”

Let’s look at the reasons behind this, and discuss whether the process can be fixed….

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Quote of the Day: Masturbatory Musings

By Elie Mystal

[M]asturbation is a form of “sexual activity” in the ordinary-language sense of the term, which judges use on occasion just as laypersons do. Masturbation is also a “sexual act” in that sense, but not in the statutory sense.

– Judge Richard Posner, doing his best to take all the fun out of jerking off (via Josh Blackman).

Quote of the Day: Judge Posner Is Not a Kindergarten Teacher

By David Lat

There must be no more of this childish abuse…. No more or there will be sanctions. In more than 29 years as a judge, I have never encountered such bickering, quarrelsome lawyers. You are wasting my time and your clients’ money.

– Judge Richard Posner of the Seventh Circuit, sitting by designation as a district judge (N.D. Ill.), ruling on motions in limine in Chamberlain Group, Inc. v. Lear Corp. (PDF).

(The context of this quotation, which contains additional benchslappery, appears below.)

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Quote of the Day: The Best Brief Is a Brief Brief

By David Lat

We add that the appellants’ brief is rambling, and would be more effective if compressed to 14,000 words.

– Judge Richard Posner, in a benchslap that denied appellants’ motion to file an oversized brief — and summarily affirmed the district court (full opinion here, via How Appealing).

Non-Sequiturs: 03.07.11

By David Lat

DNA is pretty, oh so pretty.

* The Supreme Court opens the door, but just a crack, to prisoners seeking access to DNA evidence. [SCOTUSblog]

* The legal job market is getting better, right? Right? [Vault]

* Hall, J., dissenting — from the grave. [How Appealing]

* Harvard Law School is always ready for its close-up: first The Paper Chase, then Legally Blonde, and now The Five Hundred. [Deadline.com]

* Are computers better than attorneys at document review? Maybe — but they’re definitely more attractive. [Constitutional Daily]

* Protip for litigators: “Pull Your Pants Up Before Going to Court.” [Gothamist]

* Elsewhere in fashion news, a Seventh Circuit panel (Posner, J.) holds that it’s constitutionally protected to wear a t-shirt that says “Be Happy Not Gay” to your high school. But it’s still really… gay. [WSJ Law Blog]

* Litigation to advance a worthy cause (although it seems odd, in a “cart before the horse” sort of way, to file the press releases before the actual lawsuit). [The Snitch / SF Weekly]

* Blawg Review #301: it’s all about communication. [Not Guilty via Blawg Review]

* Congratulations to Professor Brian Fitzpatrick of Vanderbilt Law on receiving the 2011 Paul M. Bator Award (won previously by a long list of blawg celebrities, including M. Todd Henderson, Orin Kerr, Jonathan Adler, Eugene Volokh, and Randy Barnett). [Federalist Society]

Quote of the Day: Relationship Advice from Judge Richard Posner

By David Lat

Plus, you always surrender in an argument with your wife, right? Isn’t that the formula for marital happiness?

– Judge Richard Posner, quoted recently in the New York Times in an article about “sell by” or “use by” dates for food.

Quote of the Day: Judge Posner Benchslaps the Bluebook

By David Lat

[N]eedless to say, I have not read the nineteenth edition. I have dipped into it, much as one might dip one’s toes in a pail of freezing water. I am put in mind of Mr. Kurtz’s dying words in Heart of Darkness — ‘The horror! The horror!’ — and am tempted to end there.

— Judge Richard Posner, in a scathing Yale Law Journal review of The Bluebook: A Uniform System of Citation (19th ed.).

(For additional discussion and funny excerpts, see Paul Horwitz, Ilya Somin, and Eugene Volokh.)

Judge Posner Clarifies Remarks on Homosexual Priests

By David Lat

Earlier this week, we selected as a Quote of the Day a controversial quip from a post by Judge Richard Posner on The Becker-Posner Blog. The quote read:

The problem of priests’ sexually molesting boys would be solved if priests were allowed to marry and if women could be priests, because then the priesthood would attract fewer homosexuals.

It was, like pretty much every Quote of the Day, removed from its context. To see that context, read Judge Posner’s complete post, entitled “Contraception and Catholicism.”

Judge Posner’s comment wasn’t well-received by some in the LGBT community, who viewed it as implying that homosexuals might be more prone to molest children than heterosexuals. Yesterday, University of Chicago OutLaw, an LGBT affinity group at Judge Posner’s longtime academic home, posted an open letter to Judge Posner on its website.

The letter criticized Judge Posner’s post for “suggesting a causal link between male homosexuality and sexual abuse of minors (or even conflating the two)” and for “promulgat[ing] inaccurate and harmful stereotypes regarding gay and lesbian individuals.” OutLaw asked Judge Posner to consider retracting his statement.

I reached out to Judge Posner to see if he had any response to Outlaw’s open letter. Indeed he did. What did he have to say?

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Quote of the Day: Judge Posner Upsets the Gays

By David Lat

The problem of priests’ sexually molesting boys would be solved if priests were allowed to marry and if women could be priests, because then the priesthood would attract fewer homosexuals.

– Judge Richard Posner, in a recent post on The Becker-Posner Blog.

Quote of the Day: Law-and-Econ Types Don’t Like to Waste Time

By David Lat

I didn’t read one word. I have a life to live.

– Chief Judge Frank Easterbrook, explaining that he didn’t read the 100 pages of RESPA disclosure documents when he recently purchased a house.

(Gavel bang: Josh Blackman, who notes that Judge Easterbrook’s colleague, Judge Richard Posner, previously said essentially the same thing.)

Quote of the Day: Is This an Opinion or an Op-Ed Piece?

By David Lat

[S]ome of the conclusions of which our leading economic experts have been confident have turned out to be incorrect. For example, Alan Greenspan, appointed and then reappointed Chairman of the Federal Reserve for five terms by four different Presidents, recently admitted to a significant flaw in the ideology that caused him to support and implement policies of financial deregulation…

And Judge Richard Posner, a highly respected jurist and a leading economics expert, has recently expressed his admiration for Keynesian economics, reversing a lifetime of reliance on the Chicago School’s approach.

– Judge Stephen Reinhardt, writing for the Ninth Circuit in State of California v. Safeway, Inc.

Quote of the Day: You’re 71 and Entitled to a Fat Pension; Retire?

By David Lat

I have to, it’s my job. I mean what would I do? I don’t know what I would do.

– Seventh Circuit Judge Richard Posner, when asked at trial how he could carry on after feeling threatened by radio host Hal Turner’s comment that Judge Posner and two of his colleagues “deserve to be killed.”

Quote of the Day: What Crawled Up His Robe?

By David Lat

I don’t believe you when you say just about anything anymore because I know that you will lie to a court any time it helps you. I know that. I saw you do it. I know you will do that. You have proven that to me beyond a reasonable doubt.

– Chief Judge James Holderman (N.D. Ill.) of Chicago, berating government lawyers — before a unanimous panel of the Seventh Circuit removed him from the case, in the middle of trial. Judge Richard Posner’s opinion cited Judge Holderman’s abuse of discretion and “unreasonable fury toward the prosecutors.”

Do Lawyers Actually Read Boilerplate Contracts?
Richard Posner and Evan Chesler don’t; do you?

By David Lat

Judge Richard Posner made one remark that stole the show at a panel about regulation at the recent American Constitution Society conference. We summarized his quip on Twitter:

Judge Posner at ACS panel: For my home equity loan, I got 100s of pages of documentation; I didn’t read, I just signed. #ACS10 #Posner #LOL

This generated laughter from the crowd, due to Judge Posner’s status as one of the greatest legal minds of his (or any other) generation. It was amusing to imagine the brilliant Posner flipping page after page of paperwork and mechanically scribbling next to every “Sign Here” flag, without even bothering to read what he was signing. It’s the kind of behavior one would expect from a person earning $35,000 and a buying a $600,000 home two hours outside of Phoenix, circa 2006 — but not from one of America’s leading jurists.

As it turns out, Judge Posner isn’t the only boldface name of the legal profession who skips over the fine print in form contracts….

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Richard Posner and Evan Chesler don’t; do you?“

The Unconfirmable Supreme Court (Part 2): The Conservatives

By David Lat

Last week, inspired by the pending Supreme Court nomination of Elena Kagan, we embarked upon a fun little imaginative exercise:

What if Supreme Court nominees didn’t have to defend themselves to the American public? What if the U.S. Senate’s constitutional privilege of “advice and consent” was revoked? What would the Court look like if the nominees didn’t have to even pretend to be moderate?

It’s a thought experiment that we’re sure has been done countless times before. But we’ve never done it, so we’ll plunge ahead.

Here are the rules: (1) The nominee should be unconfirmable. (2) The nominees on the right should make Elie angry; the nominees on the left should make Lat uncomfortable. (3) Mealy-mouthed moderates need not apply.

President Elie Mystal kicked things off by nominating his four liberal justices. And they did make me uncomfortable — half of them failed the bar exam.

I was in charge of picking the five conservative justices. So, who are my nominees?

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