Richard Posner, Unedited (Part Two)

My original plan had been to write a fairly long follow-up to my first post about about Richard Posner's new book -- Reforming the Federal Judiciary: My Former Court Needs to Overhaul Its Staff Attorney Program and Begin Televising Its Oral Arguments -- in which I would address its "literary" qualities.  The book is self-published, and therefore unedited, which means that it is filled with errors and infelicities.  (For example, he omitted Minnesota from the list of states in the Eighth Circuit, and he says that George H.W. Bush "had run and been elected in 1989.") In the meantime, however, a former staff attorney named Zoran Tasic has posted a powerful critique of the book, expanding on many of the points I was planning to make, and more.  I encourage everyone to read it, here.  So instead of a further review, I will make only one short observation.

Posner devotes much of the book to a critique of the writing of Seventh Circuit staff attorneys, especially regarding their memos to the judges in pro se cases.  Much of their writing is "vague and verbose and superfluous," he says (p. 39).  Their memos are inadequate to explain decisions to the pro se litigants, in part, "because they can't keep their sentences short" (p. 70).  Other deficiencies include "words that are too long, or are ambiguous because of multiple meanings, or that are simply obscure; long sentences; [and] interrupters" (p. 78). He repeatedly complains that a routine footnote, usually at the bottom of the first page of bench memos, is nine words too long (p. 38).

Posner's own sentences, however, are frequently over-long and discursive, often stretching to 60, 70, or even 100 words. One page after he complains about the long sentences and interrupters of the staff attorneys, he writes the following sentence of 67 words, interrupted by an em dash and two parentheticals:

The two-year stint that is typical in our court (not in every federal court of appeals, however -- it is substantially longer in many of those courts) provides experience highly valued by many law firms and government legal agencies, and as a result many staff attorneys can look forward to lucrative future employment in the private or public (less lucrative, but often more prestigious and satisfying) sector. (p. 79.)

Here is an 88 word sentence detailing his unhappy correspondence with Chief Judge Diane Wood:

I am guessing that her email had been provoked by a previous email of mine in which I had said that my book (which she had not and has not seen -- I have shown it to no one in the court except my law clerks -- although later we'll see that someone gave her a copy of a prliminary draft of the book, which unfortunately I can't find in my files) "contains very detailed critiques of a number of bench memos and draft orders by our current staff attorneys." (pp. 117-18.)

And here is a 100 word sentence, in a section explaining his development as a conservative:

That went back to the 1960s, when I had reacted very negatively to the urban riots of that decade by angry young blacks and whites and to the campus rebellions by radical students, but it was also the product of my association beginning in the same decade with brilliant conservative economists such as Milton Friedman, George Stigler, and Ronald Coase, an association that blossomed when I became a law professor at the University of Chicago in 1970, though I had gotten to know Stigler quite well the previous year, when I had taught at Stanford and he had visited there. (p. 136.)

I realize that Posner was writing for an audience of lawyers and judges, and not for pro se litigants, but he has certainly failed to model the behavior that he demands from others.  And his own writing style certainly raises questions about his proposal to edit every single staff attorney memo in order to make them more comprehensible to pro se appellants. 

In any case, no good editor would have left those sentences -- and scores more like them -- as Posner wrote them.  Posner's book is not without merit; there are some good ideas in there, though they are often obscured by his eccentricities.  One lesson, however, stands out with absolute clarity:  everyone needs an editor.

 

Comments

[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.