Appellate Advocacy Blog

Editor: Tessa L. Dysart
The University of Arizona
James E. Rogers College of Law

Thursday, September 7, 2017

Judge Posner - A Very Memorable Jurist!

As Tessa wrote earlier this week, Judge Posner, a staple of the Seventh Circuit Court of Appeal, surprised more than a few folks when he announced his immediate retirement this week. 

The influential Chicago judge [is] known for his wit, no-nonsense writing style and his provocative commentary on law, politics and society—which he offered both on and off the bench. Unlike most federal judges, Posner gave interviews and rarely held back—even when the topic was the U.S. Supreme Court.

Judge Posner is 78, and plans to descend the bench by this Saturday. He was appointed by Ronald Reagan in 1981 and served as chief judge from 1993-2000.

I am proud to have promoted a pragmatic approach to judging during my time on the Court, and to have had the opportunity to apply my view that judicial opinions should be easy to understand and that judges should focus on the right and wrong in every case,” Posner said in a statement. He noted that he had written more than 3,300 opinions during this time on the bench.

He said he looks forward to teaching and publishing “with a particular focus on social justice reform.”

As a few notable jurists before him, Judge Posner stands out through his clear prose and frequently humorous writing. He was not a fan of the Bluebook - which depending on who you talk to could be seen as heresy within the profession:

“At the level of form, the first thing to do is burn all copies of the Bluebook, in its latest edition 560 pages of rubbish, a terrible time waster for law clerks employed by judges who insist as many do that the citations in their opinions conform to the Bluebook.”

Nor was he a fan of the class action lawsuit:

    “The realistic alternative to a class action is not 17 million individual suits, but zero individual suits, as only a lunatic or a fanatic sues for $30.”

Ostrich Lawyer

He made quite a stir with his ostrich opinion (the lawyer in the case didn't think it was very funny, or befitting of a legal opinion):

"The ostrich is a noble animal, but not a proper model for an appellate advocate," Posner wrote in a November 2011 ruling that featured an illustration of a man in a suit burying his head in the sand.

Judge Posner's blunt writing style might be held up against Justice Scalia's - not really for their similarity, but for their ability to make readers take notice. Judge Posner made waves when he criticized Scalia for seemingly undermining his staunch aversion to allowing legislative history to creep into his interpretation in Heller:

“[Antonin] Scalia is a pertinacious critic of the use of legislative history to illuminate statutory meaning; and one reason for his criticism is that a legislature is a hydra-headed body whose members may not share a common view of the interpretive issues likely to be engendered by a statute that they are considering enacting. But when he looks for the original meaning of eighteenth-century constitutional provisions—as he did in his opinion in District of Columbia v. Heller, holding that an ordinance forbidding people to own handguns even for the defense of their homes violated the Second Amendment—Scalia is doing legislative history.”

Judge Posner's humor, banter, and incisive writing will certainly be missed. Congratulations on to him on such a monumental career as a jurist and here's to many more years of being an influential force in the legal profession. 

https://lawprofessors.typepad.com/appellate_advocacy/2017/09/judge-poser-is-retiring.html

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