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'Posnerian' wisdom featured in professor's new book

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It’s no secret judicial clerks help with writing opinions at some point in the process – whether it’s the research, writing a first draft, reading and writing memos to judges on their drafts, or in some cases rewriting the judge’s first draft or outline into a final draft.

However, 7th Circuit Court of Appeals Judge Richard A. Posner insists on writing his own opinions, leaving more time for his clerks to do research and criticize his drafts instead of the other way around.
 

Richard Posner Posner

Some have noticed his distinct writing style, including a Valparaiso University School of Law professor who has compiled some of the judge’s most notable writing into “The Quotable Judge Posner: Selections from Twenty-Five Years of Judicial Opinions,” released in May. The book is available online from Amazon.com and in some Chicago-area bookstores.

Professor Robert F. Blomquist said he has been focusing on Judge Posner’s opinions since 2000 after reading many of them for his coursework teaching torts, environmental law, and national security law.

“I always found opinions that were reproduced in casebooks from Judge Posner to be particularly illuminating. They cut to the heart of the matter,” he said.

Blomquist has written about Judge Posner’s

majority, concurring, and dissenting opinions.

“I thought the dissenting opinions were particularly incisive and penetrating. … He called the majority to task for sloppy, and sometimes political, reasoning,” he said.

Another academic who has also noticed Judge Posner’s opinions is Supreme Court of the United States justice nominee Elena Kagan, who Blomquist quotes in his introduction.

“‘Judge Posner does not know how to write dull opinions,’” the Harvard Law School dean wrote for the Harvard Law Review in 2007. “‘In part this is a matter of style.’ Thus, ‘Posner’s aphorisms, his sardonic humor, his colorful voice, make all his opinions interesting to read.’”

In 2006, Blomquist saw a book called “The Quotable Einstein,” which, he said, “made a light bulb go off” to consider compiling quotes from the judge’s opinions for a book not only for lawyers and law students, but also for anyone with an interest in the law. He got a contract with State University of New York Press in May 2006, and for about two years during summers and his free time during the school year, he worked with research assistants to compile a collection of highlights. He ultimately read about 2,250 opinions.

His first draft was about 600 pages of typed text, which was ultimately cut down to about 220 pages of quotes covering a range of categories including American society, civil rights, criminal law, evidence, habeas corpus, military law, prisons, trials, and of course, “Posnerian Wisdom.”

Judge Posner also agreed to write a forward to the book, which he wrote was “not to echo the too-generous praise of my judicial opinions that Professor Blomquist gives in his introduction, or even to thank him for the enormous labor he has undertaken in preparing this book,” but to explain why he thinks it’s important for appellate judges to write their own opinions.

As Judge Posner told Indiana Lawyer, the reason he writes his own opinions is “I like to write, it’s the fun part of the job for me.”

Another reason as to why it’s not the best idea for judges to have clerks write for them, he said, is because most judges only have their clerks for a year, so there’s turn over and therefore a steep learning curve every year.

“When they start, they’re not experienced opinion writers. But if a judge writes his own opinions, over the years he gains experience and can write faster than a clerk could. And if the law clerks are not writing opinions, they have more time for research,” he said.

He added that in the writing process, the writer might change his mind as to what he would like to include in the opinion.

“Writing is a stimulus to thinking,” he said. “I may realize some issues need to be addressed in different ways than I initially thought.”

If a law clerk notices something that should be changed, she is more reluctant to acknowledge the difference, he added. If a judge tells a clerk the opinion should be reversed, but the clerk disagrees, she “probably won’t come back and say, ‘I don’t think we should reverse.’”

Voice is also important in writing opinions.

“Every writer has his own voice and you can learn a lot about a person – not just a judge – from what he says and how he says it. A reader can get a better sense of where a judge is coming from if he or she is writing his or her own opinions,” he said.

On the other hand, “clerks write in an informal, impersonal way,” because they don’t want to include their own voice in the opinion.

While the judge said he understands why other judges might prefer to have their clerks write for them – especially if the judge isn’t a very good writer – there is a spectrum of how judges write opinions.

“Some judges write a rough first draft and the law clerk rewrites it, so it still includes more of the judge’s work than the clerk’s. The converse to that is when the law clerk writes the first draft and the judge rewrites it,” he said.

“I’m on the end of the spectrum with only a few other judges,” he added. “I write the first draft and give it to my law clerk for criticism and research, and the clerk writes me a memo with his or her suggestions on what should be changed. Then I do another draft. I control the writing but I get a lot of help from the clerk, including notes about any errors that need to be corrected.”

He said that for a judge to write his own opinions isn’t necessarily a sign he’s more intelligent than the clerk.

“Sometimes the law clerks might be smarter than the judges,” he said. “I’ve had law clerks smarter than I am. Sometimes … the clerk might be faster at writing opinions … but that doesn’t mean the judge isn’t bringing his experience to the job,” he said.

That includes experience of judging and writing opinions.

“I think I’ve improved at this … I like to pare down the facts to the essentials and present them in a way to give a very clear picture on what the case is about,” he said. “… I try to make sure I include all the points I think are important, and I try to be economical.”

He also doesn’t include footnotes – if something is important enough to be included he works it into the opinion, and he said he tries to avoid jargon, which he said “often operates as a substitute for thought.”

“Very early on, a law clerk for another judge told me that his wife who’s not a lawyer enjoyed reading my opinions. I thought it would be nice to write opinions that lay people could read. … I try to put everything into ordinary English,” he said.•

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  1. Yes diversity is so very important. With justice Rucker off ... the court is too white. Still too male. No Hispanic justice. No LGBT justice. And there are other checkboxes missing as well. This will not do. I say hold the seat until a physically handicapped Black Lesbian of Hispanic heritage and eastern religious creed with bipolar issues can be located. Perhaps an international search, with a preference for third world candidates, is indicated. A non English speaker would surely increase our diversity quotient!!!

  2. First, I want to thank Justice Rucker for his many years of public service, not just at the appellate court level for over 25 years, but also when he served the people of Lake County as a Deputy Prosecutor, City Attorney for Gary, IN, and in private practice in a smaller, highly diverse community with a history of serious economic challenges, ethnic tensions, and recently publicized but apparently long-standing environmental health risks to some of its poorest residents. Congratulations for having the dedication & courage to practice law in areas many in our state might have considered too dangerous or too poor at different points in time. It was also courageous to step into a prominent and highly visible position of public service & respect in the early 1990's, remaining in a position that left you open to state-wide public scrutiny (without any glitches) for over 25 years. Yes, Hoosiers of all backgrounds can take pride in your many years of public service. But people of color who watched your ascent to the highest levels of state government no doubt felt even more as you transcended some real & perhaps some perceived social, economic, academic and professional barriers. You were living proof that, with hard work, dedication & a spirit of public service, a person who shared their same skin tone or came from the same county they grew up in could achieve great success. At the same time, perhaps unknowingly, you helped fellow members of the judiciary, court staff, litigants and the public better understand that differences that are only skin-deep neither define nor limit a person's character, abilities or prospects in life. You also helped others appreciate that people of different races & backgrounds can live and work together peacefully & productively for the greater good of all. Those are truths that didn't have to be written down in court opinions. Anyone paying attention could see that truth lived out every day you devoted to public service. I believe you have been a "trailblazer" in Indiana's legal community and its judiciary. I also embrace your belief that society's needs can be better served when people in positions of governmental power reflect the many complexions of the population that they serve. Whether through greater understanding across the existing racial spectrum or through the removal of some real and some perceived color-based, hope-crushing barriers to life opportunities & success, movement toward a more reflective representation of the population being governed will lead to greater and uninterrupted respect for laws designed to protect all peoples' rights to life, liberty & the pursuit of happiness. Thanks again for a job well-done & for the inevitable positive impact your service has had - and will continue to have - on countless Hoosiers of all backgrounds & colors.

  3. Diversity is important, but with some limitations. For instance, diversity of experience is a great thing that can be very helpful in certain jobs or roles. Diversity of skin color is never important, ever, under any circumstance. To think that skin color changes one single thing about a person is patently racist and offensive. Likewise, diversity of values is useless. Some values are better than others. In the case of a supreme court justice, I actually think diversity is unimportant. The justices are not to impose their own beliefs on rulings, but need to apply the law to the facts in an objective manner.

  4. Have been seeing this wonderful physician for a few years and was one of his patients who told him about what we were being told at CVS. Multiple ones. This was a witch hunt and they shold be ashamed of how patients were treated. Most of all, CVS should be ashamed for what they put this physician through. So thankful he fought back. His office is no "pill mill'. He does drug testing multiple times a year and sees patients a minimum of four times a year.

  5. Brian W, I fear I have not been sufficiently entertaining to bring you back. Here is a real laugh track that just might do it. When one is grabbed by the scruff of his worldview and made to choose between his Confession and his profession ... it is a not a hard choice, given the Confession affects eternity. But then comes the hardship in this world. Imagine how often I hear taunts like yours ... "what, you could not even pass character and fitness after they let you sit and pass their bar exam ... dude, there must really be something wrong with you!" Even one of the Bishop's foremost courtiers said that, when explaining why the RCC refused to stand with me. You want entertaining? How about watching your personal economy crash while you have a wife and five kids to clothe and feed. And you can't because you cannot work, because those demanding you cast off your Confession to be allowed into "their" profession have all the control. And you know that they are wrong, dead wrong, and that even the professional code itself allows your Faithful stand, to wit: "A lawyer may refuse to comply with an obligation imposed by law upon a good faith belief that no valid obligation exists. The provisions of Rule 1.2(d) concerning a good faith challenge to the validity, scope, meaning or application of the law apply to challenges of legal regulation of the practice of law." YET YOU ARE A NONPERSON before the BLE, and will not be heard on your rights or their duties to the law -- you are under tyranny, not law. And so they win in this world, you lose, and you lose even your belief in the rule of law, and demoralization joins poverty, and very troubling thoughts impeaching self worth rush in to fill the void where your career once lived. Thoughts you did not think possible. You find yourself a failure ... in your profession, in your support of your family, in the mirror. And there is little to keep hope alive, because tyranny rules so firmly and none, not the church, not the NGO's, none truly give a damn. Not even a new court, who pay such lip service to justice and ancient role models. You want entertainment? Well if you are on the side of the courtiers running the system that has crushed me, as I suspect you are, then Orwell must be a real riot: "There will be no curiosity, no enjoyment of the process of life. All competing pleasures will be destroyed. But always — do not forget this, Winston — always there will be the intoxication of power, constantly increasing and constantly growing subtler. Always, at every moment, there will be the thrill of victory, the sensation of trampling on an enemy who is helpless. If you want a picture of the future, imagine a boot stamping on a human face — forever." I never thought they would win, I always thought that at the end of the day the rule of law would prevail. Yes, the rule of man's law. Instead power prevailed, so many rules broken by the system to break me. It took years, but, finally, the end that Dr Bowman predicted is upon me, the end that she advised the BLE to take to break me. Ironically, that is the one thing in her far left of center report that the BLE (after stamping, in red ink, on Jan 22) is uninterested in, as that the BLE and ADA office that used the federal statute as a sword now refuses to even dialogue on her dire prediction as to my fate. "C'est la vie" Entertaining enough for you, status quo defender?

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