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October 07, 2017

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Deep State Special Legal Counsel

This post is spot on. Posner's book and his analysis and "eccentricities" as you aptly state is second most difficult "thing" I encounter as a practicing attorney representing three bill retail theft clients. My first problem is getting paid. That's a post for a different day.

Clients don't understand the concept of "know your judge." It really is not about the black letter law or rules, necessarily. It is all about the judge. Some person smarter than me said, "The law is whatever you can get a judge to do." How does one explain "goofiness" when a client gets launched? How do you explain unpredictability when a client looses their driver's license?

I once appeared before a judge that noted that being a painter causes alcoholism. He was lenient when it came to painter who was charged with DUI. Clients don't understand this...

PaulB

Deep State, I don't know that being a painter causes alcoholism but the stereotype in construction is that painters are in fact much more likely to be alcoholic. The usual explanation is that they'll work 12 hours a day on a job for two or three weeks, then go off on a bender.

Did that same judge also go lenient on Irish and Swedish DUI defendants? Genetically programmed and all that.

Enrique Guerra Pujol

One of the ironies here is that Posner was willing to spend $100,000 of his own money to buy the necessary equipment to televise his hearings, but wasn't willing to spend a few bucks hire an editor for his latest book.

Deep State Special Legal Counsel

Paul B,

Only if they painted. At least he was facially neutral. His theory was that being exposed to paint fumes caused folks to drink. He openly felt sorry for these defendants, then would turn around and HAMMER other defendants who had NO EXECUSES for their DUI.

KatAMacfarlane

Even if we accepted the suggestion to edit decisions involving pro se litigants as Posner recommends (but does not necessarily model), why would pro ses care? A lower court decision is affirmed whether the opinion doing so is written in indecipherable legalese or in the plain English Posner wants to see. The problem with pro se litigation isn't how opinions are written, it's the procedure enshrined in the PLRA, AEDPA and local rules.

Posner Supporter

Another person without an editor is a pro se who writes his own legal brief. Do criticisms about the lack of editing in this book mirror attitudes toward a pro se's court submissions? I also wonder whether some of Posner's errors are intentional. There are many of them, and they are very obvious. For example, he cites the 2015 case of Johnson v. United States (violent white supremacist not subject to enhanced sentencing because statute was unconstitutionally vague) as a 1915 case. That would be two typos, not one. There are also the odd anti-Trump musings and the passages about his immigrant roots. What to make of those?

JrProf

KatAMacfarlane, I think the theory is that people will have more respect for the judicial system if they understand why the court has ruled a particular way. I tend to agree with Judge Posner on this point. If a pro se litigant loses but cannot hope to decipher the basis for the court's ruling, that litigant is not going to have much respect for the judicial system. On the other hand, if the court uses plain English to explain why the PLRA, AEDPA, or some other statute compels a particular result, the theory is that the pro se litigant will appropriately blame Congress for the result and not the courts. And that in turn enables participatory democracy, or so the theory goes.

Katherine Macfarlane

I agree, that was what I understood Posner's point to be. But I don't think garnering respect for the judicial system is a meaningful way to help pro se prisoners. It's a change that makes the system feel better, and maybe even clarifies that the law is bad as a result of Congressional action, but if prisoners lose, I'm still not convinced they care why.
Aside from PLRA and AEDPA, there's quite a bit the judiciary could do. For example, grant more oral argument in pro se cases, assign counsel before they're argued, and see what happens. Sending all pro se cases out of chambers is a problem the book overlooks. And, as you might expect, it's a problem I've highlighted elsewhere: https://law.uoregon.edu/images/uploads/entries/Macfarlane.pdf.

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