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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. Applause, applause, applause ..... but, is this duty to serve the constitutional order not much more incumbent upon the State, whose only aim is to be pure and unadulterated justice, than defense counsel, who is also charged with gaining a result for a client? I agree both are responsible, but it seems to me that the government attorneys bear a burden much heavier than defense counsel .... "“I note, much as we did in Mechling v. State, 16 N.E.3d 1015 (Ind. Ct. App. 2014), trans. denied, that the attorneys representing the State and the defendant are both officers of the court and have a responsibility to correct any obvious errors at the time they are committed."

  2. Do I have to hire an attorney to get co-guardianship of my brother? My father has guardianship and my older sister was his co-guardian until this Dec 2014 when she passed and my father was me to go on as the co-guardian, but funds are limit and we need to get this process taken care of quickly as our fathers health isn't the greatest. So please advise me if there is anyway to do this our self or if it requires a lawyer? Thank you

  3. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  4. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  5. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

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