Category: Jurisprudence

4

Judge Posner Is Wrong

I want to draw your attention to the Seventh Circuit’s opinion in Rowe v. Gibson, which addresses a Section 1983 claim by a prisoner. The panel was sharply–very sharply–divided on the majority’s reliance on facts outside of the record drawn from some medical websites.  Judge Posner, who wrote the majority opinion, argued that this was appropriate, while Judge Hamilton dissented and said that this research was not appropriate.  (Disclosure–I have met Judge Hamilton at some functions, but not for many years.)

I think the dissent has the better of this argument, and that Judge Posner’s discussion of the issue is poorly reasoned.  Here is a key passage:

There is a high standard for taking judicial notice of a fact, and a low standard for allowing evidence to be presented in the conventional way, by testimony subject to cross-examination, but is there no room for anything in between? Must judges abjure visits to Internet web sites of premier hospitals and drug companies, not in order to take judicial notice but to assure the existence of a genuine issue of material fact that precludes summary judgment? Are we to forbear lest we be accused of having “entered unknown territory”? This year the bar associations are busy celebrating the eight hundredth anniversary of Magna Carta. The barons who forced King John to sign that notable document were certainly entering unknown territory, and risking their lives to boot. Shall the unreliability of the unalloyed adversary process in a case of such dramatic inequality of resources and capabilities of the parties as this case be an unalterable bar to justice? Must our system of justice allow the muddled affidavit of a defendant who may well be unqualified to be an expert witness in this case to carry the day against a pro se plaintiff helpless to contest the affidavit?

My first thought on reading this is that Judge Posner’s comparison of his situation to the barons at Runnymede sounds like something silly that an undergraduate would say in a seminar paper.  My next thought is that is this sounds a lot like saying that courts should do factual research on behalf of pro se plaintiffs or plaintiffs who look overmatched in the adversarial process.  Where does that end?

Maybe we would be better off with an inquisitorial system.  But we don’t have one, and Judge Posner can’t give us one (comparisons to Magna Carta notwithstanding).  He should know better, but recently his decision read as if he just knows best.

5

The Anti-Novelty Doctrine

I’ve been catching up on what’s new in the law reviews, and I want to recommend Neal Katyal and Thomas Schmidt’s paper in Harvard on “Active Avoidance.”  Much of the article provides a well-deserved critique of the Court’s recent practice of reading statutes in absurd ways to avoid constitutional difficulties.  The paper also points out that in these cases the Court introduces new constitutional arguments in dicta to explain those alleged difficulties, which do not get adequate attention then but then get cited later as authoritative.

Another part of this article that deserves more scrutiny is its attack on the Court’s recent cases suggesting that a law which is novel should be presumed unconstitutional.  I’ve blogged in the past about this idea, which showed up in the Affordable Care Act case (on the individual mandate), the challenge to DOMA, and some other decisions.  I’m not sure how I come down on the “anti-novelty” doctrine, but it is true that this idea clashes with the general presumption of constitutionality.

9

Crisis of the Dissents Divided? — Disagreement among the Obergefell Four

imagesIn the various news feeds and pundit commentaries concerning the recent same-sex marriage case, the focus has been on the divide between the majority and dissenting opinions. Some side with the majority, others with the dissenters. Putting such differences aside for the moment, what is noteworthy is that while the Justices in the majority all spoke with one voice, the same was not true for the dissenters.

Though the judgment in Obergefell v. Hodges was 5-4, none of the four separate dissents garnered more than a total of three votes:

  • 3 votes: Chief Justice Roberts’ dissent — joined by Justices Scalia and Thomas
  • 3 votes: Justice Alito’s dissent — joined by Justices Scalia and Thomas
  • 2 votes: Justice Scalia’s dissent — joined by Justice Thomas
  • 2 votes: Justice Thomas’ dissent — joined by Justice Scalia

Notably, neither the Chief Justice nor Justice Alito signed onto any of the other dissents. Why?

The Scalia Dissent: Too confrontational?

UnknownWhile the Chief Justice and Justice Alito share many of the constitutional concerns stated by Justice Scalia (e.g., the need for judicial restraint, adherence to precedent, undermining the political process, and deference to the traditional roles of the states), they tend to be uneasy with the kind of in-your-face confrontational tone Justice Scalia employed in his unrestrained dissent.

It is a tried-and-true canon of civility: Attempt to avoid confrontational terms or phrases such as “hubris,” “egotistic,” “mummeries,” and “silly extravagances.” By that creed of civility it is unnecessarily vituperative to equate another Justice’s reasoning with “mystical aphorisms of the fortune cookie” or “pop-philosophy” or to refer to that Justice’s opinion as “judicial Putsch” – even if the seriousness of the latter is “not of immense personal importance” to you.

The Thomas Dissent: Too cabined or too natural law focused?

UnknownThe Chief Justice and Justice Alito also did not sign onto Justice Thomas’ dissent. Why? Though it is more difficult to answer this question, one explanation is a possible disagreement over the contours of due process as Justice Thomas offered it up. That is, his conservative colleagues may have been uncomfortable with Thomas’ reliance on Blackstonian notions of due process – notions perhaps too cabined for their constitutional tastes. Consider in this regard Professor Michael Dorf’s observation over at SCOTUSblog: “To the extent that Justice Thomas would allow any substantive due process, it would be for the liberty of movement only, and failing that, for no more than negative liberties. Marriage, as state recognition, would not be a fundamental right for anyone.”

And then there is Justice Thomas’ invocation of natural law and natural rights. The debate over the use and relevance of natural law has been an ongoing one in conservative circles. On that score, Chief Justice Roberts’ former boss, William Rehnquist, once found himself in the crosshairs of controversy brought on by a defender of natural law. See Harry V. Jaffa, Storm over the Constitution (1999) and his Original Intent and the Framers of the Constitution: A Disputed Question (1994) and his article “Judicial Conscience and Natural Rights,” 11 U. Puget Sound L. Rev. 219 (1987).

The Alito Dissent: Reservations about the “further decay” of marriage argument?

(drawing by Arthur Lien: courtartist.com)

(drawing by Arthur Lien: courtartist.com)

While there is much similarity between the Roberts and Alito dissents on matters such as due process, equal protection, and the specter of vilifying people of faith, both nonetheless declined to affirm the other’s dissent. What might explain the Chief Justice’s unwillingness?

Did he have some reservations about the following?: “the tie between marriage and procreation has frayed. Today, for instance, more than 40% of all children in this country are born to unmarried women. This development undoubtedly is both a cause and a result of changes in our society’s understanding of marriage. While, for many, the attributes of marriage in 21st-century America have changed, those States that do not want to recognize same-sex marriage have not yet given up on the traditional understanding. They worry that by officially abandoning the older understanding, they may contribute to marriage’s further decay.”

The Roberts Dissent: Too charitable?

(credit: WSJ)

(credit: WSJ)

If you believe (as Justice Alito seems to) that same-sex marriages may contribute to the “further decay” of marriage, then you are unlikely to be as generous of spirit as the Chief Justice was when he declared: “If you are among the many Americans — of whatever sexual orientation — who favor expanding same-sex marriage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. . . .” By the same normative token, Justice Alito is not one who would appear to be inclined to say: “Many people will rejoice at [today’s] decision, and I begrudge none their celebration.”

Or what about this Roberts’ statement?: “The opinion describes the ‘transcendent importance’ of marriage and repeatedly insists that petitioners do not seek to ‘demean,’ ‘devalue,’ ‘denigrate,’ or ‘disrespect’ the institution. . . . Nobody disputes those points.” Nobody?

Here, too, speculation is more the measure than certainty.

Crisis of the Dissents Divided?

However close my speculations are to the mark, one thing is certain: there was no unanimity of thought strong enough to convince the four dissenting Justices to lend all of their names to a single opinion. Despite their strong differences with the majority opinion, they, too, had reservations about one another’s views of law and life and how those differences should be expressed.

* * * * 

(credit: NYT)

(credit: NYT)

On a related point: What are we to make of the fact that none of the four liberal Justices who signed onto Justice Kennedy’s majority opinion in Obergefell found it necessary, or desirable, to write separate concurrences? The same was true with Justices Stevens, Ginsburg and Breyer in Romer v. Evans (1996) and Lawrence v. Texas (2003), and later with Justices Ginsburg, Breyer, Sotomayor and Kagan in United States v. Windsor (2013).

One would think that these four Justices would push for a more protective conception of equal protection concerning discrimination against gays and lesbians. No? Then again, perhaps these four think the body of law tracing back to at least Romer will suffice.  And so far it has.

13

Per Curiam Opinions

The decision of the Fifth Circuit–sure to be before the Supreme Court next Term–upholding the new Texas abortion regulations raises the question of whether per curiam opinions should still exist.

If a decision is truly a joint work (say by all three members of a panel), then perhaps that title makes sense. I think the “Joint Opinion of X, Y, and Z” is better, but that’s a semantic point.  Appellate courts, though, should not be calling an opinion “per curiam” to shield its author from identification.  We deserve to know who wrote a published opinion.

The only plausible rationale for not identifying an opinion’s author is that in organized crime or terrorism cases judges may fear retaliation.  But this is a rare circumstance.  More often what they probably fear is public scrutiny and accountability.

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2

FAN 63 (First Amendment News) CJ Roberts: Mr. First Amendment — The Trend Continues

He has the potential, almost from a running start, to bring a new day and a new era to the Supreme Court.Senator Arlen Specter (Sept. 26, 2005)
Chief Justice John Roberts (photo: Getty Images)

Chief Justice John Roberts (photo: Getty Images)

He is, by all measures, Mr. First Amendment. When it comes to free expression cases, Chief Justice John Roberts is the point man. Moreover, he solidifies that jurisprudential status with each passing year. In the process, we may well be witnessing the evolution of what could turn out to be an unprecedented chapter in the history of free-speech law in America — a welcome chapter to some and an unwelcome one to others. However that might be, one fact is undeniable: John Roberts is busy constructing a First Amendment edifice. Though it is a work still in progress, it is already towering over that of others on the Court.

This Term he has authored all of the free speech cases decided thus far by the Court — Elonis v. United States  (8-1, statutory grounds) and Williams-Yulee v. The Florida Bar (5-4). And then there is truth of the tallies:

Of course, the Chief Justice’s overall record has a few glitches, or what some might deem breaches of faith. For example, strong as his First Amendment credentials are when it comes to sustaining rights, he failed on that score in two important cases: Holder v. Humanitarian Law Project (per JR, 5-4, 2010) and Garcetti v. Ceballos (per AK, 5-4, 2006, JR joining majority). And then there was his opinion for the Court in Morse et al. v. Frederick (5-4, 2007). Finally, there was his vote Brown v. Entertainment Merchants Association (7-2, 2011) wherein he joined Justice Alito’s concurrence and thereby declined to join the First Amendment majority opinion by Justice Scalia. And while cases such as Elonis v. United States (8-1) reveal his tendency to dispose of free speech cases on statutory grounds when possible and in ways consistent with the doctrine of constitutional avoidance, others cases such as  Citizens United v. Federal Election Commission (AK, 5-4, 2010) run contrary to that position. (More could be said about all of these cases and yet other others, but I will reserve further commentary for another time.)

Roberts & Rehnquist: Stark Contrast 

Chief Justice William Rehnquist

Chief Justice William Rehnquist

What to make of it all? Here is how Paul M. Smith (a noted appellate advocate who successfully argued the Brown case) answers that question: “While it is clear that Chief Justice Roberts has become the most important Justice in First Amendment cases, surpassing even Justice Anthony Kennedy, he has shown a willingness to deny protection to speech he disapproves of. Examples include Holder v. Humanitarian Project, Brown v. Entertainment Merchants Ass’n, and Morse v. Frederick. But, that said, Chief Justice Roberts has certainly come a long way from the viewpoint of his mentor Justice (and later Chief Justice) William Rehnquist, who was far less likely than more recent conservatives to vote to invalidate laws under the First Amendment.”

Paul M. Smith

Paul M. Smith

To illustrate Mr. Smith’s comparative point, consider the fact that during his 33 years on the Court, first as an Associate Justice and then as the Chief Justice, Rehnquist authored 71 freedom-of-expression opinions, 29 of which were majority opinions. The vast majority of those opinions were hostile to the free-speech claims raised. And as Professor Geoffrey Stone has observed: “In his more than 30 years on the Supreme Court, Rehnquist participated in 259 decisions involving these freedoms. In these cases, Rehnquist voted to support the 1st Amendment claim only 20 percent of the time.”

“Strong free expression principles”

While some maintain that John Roberts’s opinions primarily serve corporate deregulatory interests (see below), the fact is that there is a bounty of doctrinal law and powerful language in many of those opinions that lawyers have tapped into in any variety of free speech cases.

Robert Corn-Revere

Robert Corn-Revere

According to Robert Corn-Revere, an experienced First Amendment lawyer: “The Chief Justice has espoused strong free expression principles that have had the effect of protecting even speech some consider to be at the fringe of the First Amendment concern – including  fetish videos and speech by hateful religious zealots. And in McCutcheon he observed that ‘[i]f the First Amendment protects flag burning, funeral protests, and Nazi parades — despite the profound offense such spectacles cause—it surely protects political campaign speech despite popular opposition.’  Those who criticize the application of these principles to campaign laws because they are ‘deregulatory’ simply are engaging in a different sort of result-oriented reasoning. They don’t want the First Amendment to limit those speech regulations they favor.  Chief Justice Roberts’ record may not be perfect (given decisions like MorseGarcetti, and Holder), but it certainly is strong.”

Selected Commentaries:

  1. Sam Baker, “John Roberts: First Amendment Champion*,” National Journal (June 3, 2015)
  2. David H. Gans, “Roberts at 10:The Strongest Free Speech Court in History?”, Constitutional Accountability Center (May, 2015)
  3. Lincoln Caplan, “The Embattled First Amendment,” The American Scholar (Spring 2015)
  4. David H. Gans, “The Roberts Court Thinks Corporations Have More Rights Than You Do,” The New Republic (June 30, 2014)
  5. Ronald Collins, “The Roberts Court and the First Amendment,” SCOTUSblog (July 9, 2013)
  6. Ronald Collins, “Exceptional Freedom-The Roberts Court, First Amendment, and the New Absolutism,” Albany Law Review (2013)
  7. Adam Liptak, “Study Challenges Supreme Court’s Image as Defender of Free Speech,” New York Times (January 7, 2012)
  8. Erwin Chemerisnky, “Not a Free Speech Court,Arizona Law Review (2011)
  9. David L. Hudson, Jr., “Chief Justice Roberts and the First Amendment,” First Amendment Center (April 22, 2011)

New Hampshire High Court: Parking Meter “Robin Hoods” Protected under FA

Don’t follow leaders, watch the parking metersBob Dylan

The case is City of Keene v. Cleaveland, et al (N.H., June 9, 2015). The opinion for the Court was authored by Associate Justice James P. Bassett.

Justice James Bassett

Justice James Bassett

Facts: “The City employs [parking enforcement officers (PEOs] to enforce motor vehicle parking laws and regulations in Keene. The PEOs patrol downtown Keene on foot and in marked vehicles, monitoring parking meters and issuing parking tickets. In December 2012, the respondents began protesting parking enforcement in Keene. On an almost daily basis, the respondents followed closely behind the PEOs, identifying expired parking meters and filling the meter before a PEO could issue a ticket, a process referred to by the respondents as a “save.” When the respondents “save” a vehicle, they leave a card on the vehicle’s windshield that reads: ‘Your meter expired! However, we saved you from the king’s tariff!’ The respondents also: videotaped the PEOs from a close proximity; called the PEOs names such as ‘f*****g thief,’ ‘coward,’ ‘racist,’ and ‘b***h’; criticized the PEOs for issuing tickets; encouraged the PEOs to quit their jobs; and waited for the PEOs during their breaks, including waiting outside restrooms. The respondents testified that they engage in these activities to protest parking enforcement because they believe that parking is not a criminal act, and that parking tickets are a ‘threat against [the] people.'”

Held: “[W]e note that we share the trial court’s skepticism as to whether a tortious interference claim can exist when private citizens engage in protest of the government. However, we need not decide whether a viable tortious interference claim can exist under the circumstances present in this case because we agree with the trial court that holding the respondents liable for tortious interference based upon their alleged activities would infringe upon the respondents’ right to free speech under the First Amendment. . . .”

7256167_G“Because we hold that the First Amendment bars the City from pursuing its claim for tortious interference with contractual relations, we also conclude that the First Amendment bars the City from pursuing its claim that the respondents are liable for conspiring to commit the very same tort. . . .”

“In light of the City’s allegations that the challenged conduct threatens the safety of the PEOs, pedestrians, and the motoring public, and given the testimony of the PEOs at the hearing, we hold that the trial court erred when it failed to consider the particular factual circumstances of the case and whether an injunction should issue based upon the governmental and policy interests asserted by the City. . . . Accordingly, we vacate the trial court’s denial of the City’s request for injunctive relief, and remand for the trial court to address the issue of whether the governmental interests and factual circumstances asserted by the City in its petition are sufficient to warrant properly tailored injunctive relief.”

Counsel for Respondents: Backus, Meyer & Branch, LLP, of Manchester (Jon Meyer on the brief and orally).

Amici: Nixon Peabody LLP of Manchester (Anthony J. Galdieri on the brief), and New Hampshire Civil Liberties Union, of Concord (Gilles R. Bissonnette on the brief), for New Hampshire Civil Liberties Union, as amicus curiae.

California Lawmakers: Reproductive Fact Act

This from a WND report by Bob Unruh: “California’s Democrat-controlled legislature previously became the first state to bar counselors from helping minors be healed of unwanted same-sex attractions. Counselors are allowed only to promote homosexuality to minors. Now, California Democrats, with AB 775, want to require crisis pregnancy centers, including those that are run by faith-based organizations, to actively promote abortion. New York already tried it and was slapped down by the courts.” See Evergreen Association v. City of New York (2nd Cir., 2014)

See also Samantha Lachman, “California Assembly Passes Bill Banning Crisis Pregnancy Centers From Misleading Patients,” Huffington Post, May 26, 2015: “The California Assembly passed legislation Tuesday that would require faith-motivated crisis pregnancy centers to provide comprehensive information about reproductive health care options, including abortion.”

“The bill, known as the Reproductive Fact Act, would require pregnancy centers to post notices saying that reproductive health services, including abortion, are available to pregnant women in the state. Pregnancy centers also would have to disclose whether they lack a medical license. The bill passed on a party-line vote, with Republicans objecting on the grounds that it would unconstitutionally compel government speech for the state’s 167 centers.”

Unprotected: Cellphone video of U.S. senator’s bedridden wife in a nursing home

This news report from the Associated Press: “A Mississippi judge on Monday rejected an argument that a blogger had a First Amendment right to shoot a cellphone video of a U.S. senator’s wife while she was bedridden with dementia in a nursing home. The defense attorney for blogger Clayton Kelly made the free-speech argument during pre-trial motions Monday. Clayton Kelly of Pearl is charged with conspiracy, attempted burglary and burglary”.

“‘I think a lot of this is political. I think my constitutional rights should be respected,’ Kelly, whose blog was called Constitutional Clayton, told reporters outside the Madison County Courthouse.. . .”

“Images of Rose Cochran appeared online briefly during the 2014 election, during a tough Republican primary. Investigators say Kelly was one of several people who conspired to produce the video suggesting U.S. Sen. Thad Cochran was having an affair. . . “

See also Kelly pleads guilty to conspiracy in Cochran photo case,” Jackson Clarion Ledger‎, June 8, 2015

Mobile Monument Project 

This from the Thomas Jefferson Center for the Protection of Free Expression:

The Mobile Monument Project involves transforming a standard issue 20-foot ISO shipping container into an elegant and engaging representation of our precious First Amendment values.

UnknownThe exterior features more than 400 sq ft of “chalkboard” space where visitors can express themselves however they wish. On the inside, a beautiful open gallery space provides a backdrop for rotating exhibits, performances, installations—the sky’s the limit!
In short, the Mobile Monument is an interactive exploration of what it means to enjoy and exercise our right of free expression. And because it’s so portable, the Mobile Monument takes this important message straight to the people. Once completed, the Monument can go almost anywhere:
  • College Campuses
  • State Capitols
  • Public Parks
  • Festivals
  • Community Events
  • Concerts

See video here

DONATIONS NEEDED TO FUND PROJECT: $15,000 goal (go here to contribute)

RelatedEugene Volokh Joins TJC Board of Trustees

David Strauss: “Toil and Trouble in Media-Land”

Professor David Strauss

Professor David Strauss

Over at The New Rambler Professor David Straussreviews Amy Gajda’s The First Amendment Bubble: How Privacy and Paparazzi Threaten a Free Press (2015). Here are a few excerpts:

“The Obama Administration is said to have prosecuted more people for leaking classified information than all previous administrations combined. Journalists have noticed. ‘The Obama Administration is the greatest enemy of press freedom in a generation,’ according to James Risen, the New York Times investigative reporter. Risen’s language is unusually strong, but the general theme is familiar among journalists. In a typical comment, Bob Schieffer, a CBS Washington correspondent, is quoted as saying: ‘Whenever I’m asked what is the most manipulative and secretive administration I’ve covered, I always say it’s the one in office now . . . . This administration exercises more control than George W. Bush’s did, and his before that.’”

“It seems unlikely that this Administration is just more authoritarian or paranoid than the one before it (which was in turn more so than the one before it, and so on), or that this President and Attorney General harbor a perverse desire to antagonize the New York Times and CBS. The much more plausible explanation is that the world has changed, and government officials have responded by becoming less tolerant of practices they might have lived with before. . . .”

What are some of the changes that Strauss thinks explains this? He lists four:

  1. “The first change, inevitably, is the technology.”
  2. The second change is the mass availability of information on the Internet, information that was once difficult to obtain.
  3. The third change is in the nature of “the press.” “Today, of course, a self-anointed Ellsberg does not have to submit himself to the judgment of editors like [those of the New York Times or the Washington Post]. Someone who has government secrets can propagate them, worldwide, more or less immediately, either without any intermediary or with an intermediary who will not feel the same obligation to try to take the government’s interests into account.”
  4. The fourth change is “the economics of the media industry put pressure on everyone to cater to the lowest denominator.”

The main problem in all of this, he adds, is not such much the law. “The problem is whether the media themselves will have the incentives and the capacity to do the job that they must do, and ought to do, in a free society. There is only so much the law can do about that.”

Campus Free-Speech Watch

As the the stories and commentaries below (all recent ones) indicate, the battle for free speech on college campuses is proving, yet again, to be the biggest one of the year. What is also noteworthy is the very high success rate of challenges to campus speech codes . . . and yet many remain on the books.     

  1. College Attempts to Censor Student Columnist: Q&A with Andrew Breland,” TheFireorg, June 8, 2015
  2. Robert Soave, “Campus Censorship is The Feds’ Fault,” The Daily Beast, June 6, 2015
  3. Benjamin Wermund, “Student sues Blinn College, says ‘free speech zone’ violates First Amendment,” Chron, June 6, 2015
  4. Ray Nothstine, “Boise State University to Pay $20,000 to Pro-Life Group After Backtracking on Censorship,” CP US, June 6, 2015
  5. George F. Will, “A summer break from campus muzzling,” Providence Journal, June 5, 2015
  6. BSU changes policy, drops lawsuit with campus group,” Associated Press, June 4, 2015
  7. Greg Piper, “Democratic lawmaker defends anti-Christian campus policies at hearing,” The College Fix, June 2, 2015
  8. Brenda Schory, “Waubonsee paid $132K to settle free-speech lawsuit,” My Suburban Life, June 5, 2015
  9. Donald A. Downs, “Shouting down campus speakers,” Philly.com, June 2, 2015
  10. Another university gets ‘green light’ for First Amendment-friendly campus,” News Now, May 29, 2015

Congressman Louie Gohmert on First Amendment Rights in Universities & Schools (June 2015: re statement made at House Judiciary Subcommittee on Constitution and Civil Justice Hearing)

Group Launches Litigation Campaign to Challenge Campus Speech Codes,” Concurring Opinions, FAN 21.1, Jul2 2, 2014

Seinfeld: “I don’t play colleges. They’re so PC.”

This from a Washington Post news story by Justin Wm. Moyer: “Jerry Seinfeld himself has taken a stand — against political correctness on campus. The 61-year-old comedian told an ESPN interlocutor that he avoids performing at universities because of trigger warnings, speech codes and other First Amendment umbrage.”

“‘I don’t play colleges,’ Seinfeld said on The Herd with Colin Cowherd. ‘. . . I hear a lot of people tell me, ‘Don’t go near colleges. They’re so PC.’”

Flashback: Politically Incorrect: “Racist” jokes – David Spade, Sarah Silverman & Bill Maher

Check out this YouTube video of an old Bill Maher show — really quite good back-and-forth.

* * * * *

Journalists, Jails & the First Amendment

“For the first time we have assembled, in one place, virtually all the journalists who’ve gone to jail in the United States for doing a vital part of their job. . . Tonight we’re going to hear their stories.” — John M. Donnelly (See video here.)

* * * * *

Senator Cruz & Shaun McCutcheon

Senator Cruz & Shaun McCutcheon

Shaun McCutcheon — Round ‘n About

→ Luke Mulins, “Shaun McCutcheon Blew Up Campaign-Finance Law and Became a GOP Hero. Then He Set His Sights on Paris Hilton,” The Washingtonian, June 7, 2015

New & Notable Blog Posts

New & Forthcoming Scholarly Articles

  1. Jessica Bulman-Pozen & David E. Pozen, “Uncivil Obedience,” Columbia Law Review(2105)
  2. Daniel E. Herz-Roiphe, “Stubborn Things: An Empirical Approach to Facts, Opinions, and the First Amendment,” Michigan Law Review: First Impressions (2015)
  3. Eugene Volokh, “Gruesome Speech,” Cornell Law Review (2015)
  4. Mohamed H. Aziz , “Counter Terrorism Measures via Internet Intermediaries: A First Amendment & National Security Dilemma,” Journal of Law and Cyber Warfare (forthcoming 2015)
  5. Jordan M. Singer, “Judges on Demand: The Cognitive Case for Cameras in the Courtroom,” Columbia Law Review: Sidebar (2015)
  6. John Korevec, “‘McDonald Does Dallas’: How Obscenity Laws on Hard-Core Pornography Can End the Nation’s Gun Debate,” Southern California Law Review (2015)
  7. Paul J. Larkin Jr., “Revenge Porn, State Law, and Free Speech,” Loyola Los Angeles Law Review (2014)

News, Op-eds, Commentaries & Blog Posts

  1. Tim Cushing, “New Mexico Judge Says First Amendment Is Subservient To The ‘Dignity Of The Court’,” TechDirt, June 8, 2015
  2. George Will, “Campaign-Finance Reformers’ First Amendment Problem,” National Review Online, June 6, 2015
  3. Gene Policinski, “Inside the First Amendment — A reminder to remember — rededicating the Journalists Memorial, The Morning Sun, June 6, 2015
  4. Mike Goodwin, “Supreme court dodges First Amendment issue, but still puts limits on criminalizing speech,” R Street, June 5, 2015
  5. David Keating, “Another View: Demand for nonprofits’ donor lists violates First Amendment,” Sacramento Bee, June 5, 2015
  6. Charlie Butts, “Porn lawyers claim First Amendment right to hire kids,” NewsNow, June 6, 2015
  7. Ruthann Robson, “Supreme Court Dodges First Amendment Issue in Facebook Threats Case,” Constitutional Law Prof Blog, June 1, 2015
Professor Elliott Visconsi.

Professor Elliott Visconsi

Notre Dame Online Video Lecture Series on First Amendment Law

The Notre Dame Office of Digital Learning offers an informative and engaging overview of First Amendment free expression law in a series of video lectures (or “modules” as they are tagged). The lectures are given by Professor Elliott Visconsi.

  1. Why the First Amendment? 
  2. Arguing Free Expression
  3. Rise of Individually Centered First Amendment
  4. Sedition & Incitement 
  5. What is Speech?
  6. Literariness
  7. Digitality

New YouTube Posts

  1. Alton man wins free speech case before NH Supreme Court,” WMUR-TV, June 9, 2015
  2. Hannity, “Pamela Geller, imam debate threats to free speech,” Fox News, June 7, 2015

THE COURT’S 2014-15 FREE EXPRESSION DOCKET

[last updated: 6-09-15]

Cases Decided 

  1. Elonis v. United States (decided: June 1, 2015) (8-1 per Roberts)
  2. Williams-Yulee v. The Florida Bar (argued: Jan. 20, 2015 / decided: April 29, 2015) (5-4 per Roberts)

Review Granted & Cases Argued

  1. Reed v. Town of Gilbert (argued 1-12-15)
  2. Walker v. Texas Division, Sons of Confederate Veterans (argued 3-23-15)

Pending Petitions*

  1. Berger v. American Civil Liberties Union of North Carolina (license plate case)
  2. Thayer v. City of Worcester (last distributed for Conference of January 9, 2015)
  3. Friedrichs v. California Teachers Association, et al. (4-27-15: The Court asked the Calif. AG to respond to the petition)
  4. Central Radio Co., Inc. v. City of Norfolk (amicus brief by Eugene Volokh)
  5. Center for Competitive Politics v. Harris (emergency application for injunction pending Cert.)
  6. Walker-McGill v. Stuart

Review Denied*

  1. O’Keefe v. Chisholm
  2. King v. Christie
  3. Apel v. United States 
  4. Dariano v. Morgan Hill Unified School District
  5. The Bronx Household of Faith v. Board of Education of the City of New York 
  6. Arneson v. 281 Care Committee
  7. Kagan v. City of New Orleans
  8. ProtectMarriage.com-Yes on 8 v. Bowen
  9. Clayton v. Niska
  10. Pregnancy Care Center of New York v. City of New York 
  11. City of Indianapolis, Indiana v. Annex Books, Inc.
  12. Ashley Furniture Industries, Inc. v. United States 
  13. Mehanna v. United States
  14. Stop This Insanity Inc Employee Leadership Fund et al  v. Federal Election Commission
  15. Vermont Right to Life Committee, et al v. Sorrell

Though these lists are not comprehensive, I try to track as many cases as possible. If you know of a cert. petition that is not on these lists, kindly inform me and I will post it.   

LAST SCHEDULED FAN POST, #62: “Federal Judge Blasts Liberal Assault on the First Amendment

NEXT SCHEDULED FAN POST, #64: Wednesday, June 17, 2015

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Posner Mania — Two New Books Coming this January: One by Posner, the other on Posner

Can one ever have his or her fill of Richard Posner? Perhaps, perhaps not. However that may be, the maverick jurist will be in the limelight once again by way of two forthcoming books — yet another book by him, and biography about him (the first of its kind).

On New Years day of next year, Oxford University Press will release Richard Posner by William Domnarski. The book is slated to be 336 pages long and will sell for $29.95 in hardcover. Here is the publisher’s blurb on the book:

Unknown“Judge Richard Posner is one of the great legal minds of our age, on par with such generation-defining judges as Holmes, Hand, and Friendly. A judge on the U.S. Court of Appeals for the Seventh Circuit and the principal exponent of the enormously influential law and economics movement, he writes provocative books as a public intellectual, receives frequent media attention, and has been at the center of some very high-profile legal spats. He is also a member of an increasingly rare breed-judges who write their own opinions rather than delegating the work to clerks-and therefore we have unusually direct access to the workings of his mind and judicial philosophy.”

“Now, for the first time, this fascinating figure receives a full-length biographical treatment. In Richard Posner, William Domnarski examines the life experience, personality, academic career, jurisprudence, and professional relationships of his subject with depth and clarity. Domnarski has had access to Posner himself and to Posner’s extensive archive at the University of Chicago. In addition, Domnarski was able to interview and correspond with more than two hundred people Posner has known, worked with, or gone to school with over the course of his career, from grade school to the present day. The list includes among others members of the Harvard Law Review, colleagues at the University of Chicago, former law clerks over Posner’s more than thirty years on the United States Court of Appeals for the Seventh Circuit, and even other judges from that court.”

“Richard Posner is a comprehensive and accessible account of a unique judge who, despite never having sat on the Supreme Court, has nevertheless dominated the way law is understood in contemporary America.”

 → See The Promethean Posner – An Interview with the Judge’s Biographer, Concurring Opinions (Dec. 29, 2014)

℘ ℘ ℘

Three days after the release of the Oxford biography, Harvard University Press will release Divergent Paths: The Academy and the Judiciary by Judge Posner.  The 350-page book (he has done some 40 or so of them) will also sell for $29.95 in hardcover. Here is the publisher’s blurb on the book:

Unknown“Judges and legal scholars talk past one another, if they have any conversation at all. Academics couch their criticisms of judicial decisions in theoretical terms, which leads many judges—at the risk of intellectual stagnation—to dismiss most academic discourse as opaque and divorced from reality. In Divergent Paths, Richard Posner turns his attention to this widening gap within the legal profession, reflecting on its causes and consequences and asking what can be done to close or at least narrow it.”

“The shortcomings of academic legal analysis are real, but they cannot disguise the fact that the modern judiciary has several serious deficiencies that academic research and teaching could help to solve or alleviate. In U.S. federal courts, which is the focus of Posner’s analysis of the judicial path, judges confront ever more difficult cases, many involving complex and arcane scientific and technological distinctions, yet continue to be wedded to legal traditions sometimes centuries old. Posner asks how legal education can be made less theory-driven and more compatible with the present and future demands of judging and lawyering.”

“Law schools, he points out, have great potential to promote much-needed improvements in the judiciary, but doing so will require significant changes in curriculum, hiring policy, and methods of educating future judges. If law schools start to focus more on practical problems facing the American legal system rather than debating its theoretical failures, the gulf separating the academy and the judiciary will narrow.”

℘ ℘ ℘

  For more on Posner, see The Complete Posner on Posner SeriesConcurring Opinions (12 postings, Nov. 24, 2014 – Jan. 5, 2015)

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FAN 51 (First Amendment News) Journalists, Scholars & Others Pay Tribute to Anthony Lewis

Anthony Lewis . . . created a new approach to legal journalism. He combined sophisticated legal analysis with an unparalleled ability to write in plain, lucid English, translating the Court’s decisions, explaining their implications, and assessing their significance for a broad readership. David Cole (May 9, 2013)

Tony Lewis (credit: NYT)

Tony Lewis (credit: NYT)

Anthony Lewis (1927-2013) — reporter, columnist, educator, Pulitzer Prize-winning author, and scholar. He was all of those things and more. I grew up on Tony Lewis (he was born Joseph Anthony Lewis). He was right there, in the New York Times, which in those days you couldn’t get on the Internet – there was none. If you were outside New York you were lucky to find a hard copy at a good hotel or news- stand.  A Lewis column was a staple of one’s diet for those who followed the Court and related matters. And what a corpus of work he set his name to — some 5,600 some articles and columns and five books. That is reason enough to single out the Lewis byline.

→ See Adam Liptak, “Anthony Lewis, Supreme Court Reporter Who Brought Law to Life, Dies at 85,” NYT, March 25, 2013

Happily, the Missouri Law Review recently paid tribute to Tony Lewis in a symposium issue with 13 contributors, several of whom once worked with him and were also close friends of his. (Note: The links below may not open in Safari but should open in Firefox and Chrome.)

  1. Foreword: The Art, Craft, and Future of Legal Journalism: A Tribute to Anthony Lewis, by Richard Ruben
  2. Keynote: Anthony Lewis and the First Amendment, by Adam Liptak

Articles

  1. Anthony Lewis: What He Learned at Harvard Law School, by Lincoln Caplan
  2. Anthony Lewis: Pioneer in the Court’s Pressroom, by Lyle Denniston
  3. The Rigorous Romantic: Anthony Lewis on the Supreme Court Beat, by Linda Greenhouse
  4. Press Freedom and Coverage in the U.S. and Kosovo: A Series of Comparisons and Recommendations, by Ben Holden
  5. A Tiger with No Teeth: The Case for Fee Shifting in State Public Records Law, by Heath Hooper & Charles N. Davis
  6. Anthony Lewis, by Dahlia Lithwick
  7. Legal Journalism Today: Change or Die, by Howard Mintz
  8. Institutionalizing Press Relations at the Supreme Court: The Origins of the Public Information Office, by Jonathan Peters
  9. Setting the Docket: News Media Coverage of Our Courts – Past, Present and an Uncertain Future, by Gene Policinski
  10. As Today’s Tony Lewises Disappear, Courts Fill Void, by David A. Sellers
  11. Making Judge-Speak Clear Amidst the Babel of Lawspeakers, by Michael A. Wolff

Tony Lewis’ Fantasy

You lead me to tell you my fantasy. A happy fantasy. [It is this:] our next President does the equivalent of what Jefferson did in his first inaugural when he was so hated by the Federalists and began his inaugural speech by saying, “We are all Republicans – we are all Federalists.” The next president sets out to say two things. One, there’s nobody unpatriotic here. We’re all Americans together. And two, this administration is going to be an administration of law; where law has been rolled back, we’re going to bring it to the fore again. This country is a government of laws, not men. That’s my fantasy. Will it happen? I doubt it. But I sure think it ought to. (Sept. 12, 2006 Interview, Walter Lippmann House, Cambridge, Mass.)

Go here for a C-SPAN interview I did with Tony in connection with his book Freedom for the Thought That We Hate: A Biography of the First Amendment (2001).

Media Groups Challenge Claim for Profits in the Defamation Case

Jesse Ventura

Jesse Ventura

The case is Ventura v. Kyle, which is presently before the United States Court of Appeals for the Eighth Circuit. The matter involves a defamation lawsuit brought in federal court by Jesse Ventura (former governor of Minnesota and Navy veteran) against HarperCollins concerning its publication of the book American Sniper by Chris Kyle. Last summer, a jury awarded Ventura $1.8 million from the Kyle estate. The case is now on appeal.

Yesterday Floyd Abrams joined by Susan Buckley and Merriam Mikhail filed an amicus brief on behalf of 33 media companies and organizations contesting the award. In it, the trio of lawyers advanced two main arguments:

  1. The Common Law Does Not Recognize and the Constitution Does Not Permit an Award of a Book’s Profits as a Remedy for Defamation, and
  2. The Award of Profits from American Sniper is Tantamount to an Award of Punitive Damages, Damages that Are Not Permitted Against the Estate

“[T]he law of libel,” they maintain, has “been clear that while damages could be awarded to victims of libel, the awards would be limited to the recovery of money for the injuries said to have been sustained by plaintiffs and not for amounts claimed to have been received by defendants. That proposition has rarely been questioned until this case. Indeed, we know of only one case, decided more than 65 years ago, that is directly on point: Hart v. E.P. Dutton & Co., 93 N.Y.S.2d 871 (Sup. Ct. 1949), aff’d, 98 N.Y.S.2d 773 (App. Div. 1950), appeal denied, 99 N.Y.S.2d 1014 (App. Div. 1950). Rooted in constitutional concerns and the common law relating to libel, the Hart decision holds that a claim for profits may not be asserted in the defamation context. We are aware of no case before or after Hart to the contrary.”

The briefs concludes: “Where, as here, there was no showing of evil intent sufficient to satisfy [Minnesota’s punitive damages law], where, as here, an award of profits can serve no deterrent or punitive purpose, and where, as here, the First Amendment’s abhorrence of exorbitant damage awards untethered to a plaintiff’s true injury is clearly in play, this Court should not be the first to sanction an unprecedented award of a book’s profits.”

 As noted in their amicus brief, the issue of an award of profits in defamation cases is addressed in Dan Dobbs, Law of Remedies: Damages – Equity – Restitution (2d ed.) (“One reason to deny the restitution claim is the threat it presents to free speech. Another is the difficulty of apportioning the publisher’s profit between his own effort and investment and the defamatory material.”)

Geoffrey Stone Weighs in on Oklahoma Expulsion Controversy  Read More

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Grant Gilmore’s Resurrection . . . with a little help from Philip Bobbitt

 Grant was a magician in an age of bureaucrats. — Anthony Kronman (1982)

Grant Gilmore

Grant Gilmore

The Ages of American Law has been reissued with a new foreword and a new final chapter by Columbia Law School Professor Philip Bobbitt. More about that soon, but first a few words about the man recently reincarnated.

Grant Gilmore died on May 24, 1982 — the same date of Benjamin Cardozo’s birth (May 24, 1870). G.G. died in his sleep; he was 72.

Gilmore was a Yale man (AB, 1931, PhD, 1936 & L.L.B, 1942) bred in the Boston suburbs. He began his academic career teaching French at Yale, but he tired of it and so ventured into law. He taught at Yale Law School, University of Chicago Law School, the College of Law (now Moritz College of Law) at Ohio State University, and finally at Vermont Law School. His books included:

Though he was picked by the executors of the Oliver Wendell Holmes papers to do the definite biography of Justice Holmes (very strange!), it never came to pass. And he never published his PhD dissertation — Stephane Mallarme: A Biography and Interpretation (1936). By way of an interesting aside: In 1959 Professor Arthur Corbin privately recommended Gilmore to serve as an advisor for the drafting of The Restatement (2nd) of Contracts (also strange). As fate had it, that, too, never came to pass and Gilmore never became a “restater.”

By the time he died, the complex and cantankerous Gilmore had made his mark on the law, and a notable though peculiar mark it was. For all his fame and infamy, no gravestone marked his memory. His scattered ashes were his final consideration, illusory as that may seem.

Ironically, this bold and blazing scholar left his papers to the Harvard Law School — the same institution that held firmly to the conviction that “inspiration should be distrusted,” or so Gilmore put it in 1963, albeit with a critical cutting edge.

∇ ∇ ∇

Philip Bobbitt

Philip Bobbitt

And now, like the Phoenix of old, he returns to find new life. Or at least that part of him arising from The Ages of American Lawwhich has just been republished in Kindle form. Here, as Professor Bobbitt recounts it, is how it came to pass: “In late 2011, I was approached by an editor at Yale University Press, who was considering a revised edition of Grant Gilmore’s classic, The Ages of American Law. I responded that I would be pleased if the Press would publish, as a Foreword to such an edition, my 1975 essay in the Yale Law Journal introducing one of Gilmore’s lectures, ‘The Age of Anxiety,’ which he reworked to form Chapter 4 of the book. After reading that essay,” adds Bobbitt, “the editor proposed that it be published as a ‘historical document with a preface to provide context’ and that I should also draft a new section bringing it up to date, as apparently some readers wished in the classes in which the book is taught.”

41seNslJYSL._BO2,204,203,200_PIsitb-sticker-v3-big,TopRight,0,-55_SX278_SY278_PIkin4,BottomRight,1,22_AA300_SH20_OU01_That is how Bobbitt’s fascinating foreword begins. But there is much more, about Robert Cover, the famed Storrs Lectures (Oct. 1974), and young Philip Bobbitt’s role in it all. (Gilmore thanked Bobbitt in the acknowledgements to Ages. It was, after all, Bobbitt who had drafted the “Editors’ Introduction” to Gilmore’s “The Age of Anxiety” essay published in 1975 in the Yale Law Journal).

Bonus: There is a new 50-age chapter (#6) added to Ages: it is by Bobbitt and is titled “The Age of Consent,” which first appeared last year in the Yale Law Journal.

* * * *

 Book Review of The Ages of American Law, Mark Tushnet, American Journal of Legal History (1977).

→ Ellen A. Peters, “Grant Gilmore and the Illusion of Certainty,” Yale Law Journal (1982)

Posner
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The Complete Posner on Posner Series

The Posner on Posner series began on November 24, 2014 and ended with the Afterword on January 5, 2015. Below is a hyperlinked list of all the posts.

 Table of Contents

  1. The Maverick – A Biographical Sketch of Judge Richard Posner: Part I
  1. The Maverick – A Biographical Sketch of Judge Richard Posner: Part II, The Will to Greatness
  1. The Man Behind the Robes — A Q & A with Richard Posner
  1. The Judge & Company – Questions for Judge Posner from Judges, Law Professors & a Journalist
  1. On Legal Education & Legal Scholarship — More questions for Judge Posner
  1. On Free Expression & the First Amendment — More questions for Judge Posner
  1. On Privacy, Free Speech, & Related Matters – Richard Posner vs David Cole & Others
  1. On Judicial Reputation: More questions for Judge Posner
  1. Posner on Same-Sex Marriage – Then & Now
  1. Posner on Case Workloads & Making Judges Work Harder
  1. The Promethean Posner – An Interview with the Judge’s Biographer
  1. Afterword: Posner at 75 – “It’s My Job”

→ Forthcoming: Richard Posner (Oxford University Press, Spring, 2015) by William Domnarski.

Posner
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Afterword: Posner at 75 – “It’s My Job”

Take him for all and all. William Shakespeare (circa 1600)

I live on my own credit. Friedrich Nietzsche (1888)

I believe in cremation. No tombstone for me. – Richard Posner (2013)

This is twelfth and final installment in the Posner on Posner series. (Note: some of the hyperlinks below may open in Firefox or Chrome but not in Safari.)

His temperament: largely solitary and characteristically confident. His manner: often distant and frequently detached. His character: habitually unconventional. He seems indifferent to creeds and causes. And he can be steel-like — cold, calculating, and controlling. Then again, catch him at the right part of the day, at the right tick of  the clock, and with the right circle of people and he can be witty and lively in his own unique way.

In all of these respects and others, one soon enough senses the obvious: Richard Posner is different. Nothing pejorative here, just descriptive. Besides, it has been a feature of his persona for so long as to have become his trademark. While there have been a few modifications of his views over the decades, the man himself has remained basically the same, though he may (?) have mellowed a bit. That said, Posner is ever the maverick; that is his calling card to the world.

The more we learn of him, the more he defies the norm of how most people think about most judges. Though we already know much about the public work of this jurist, there is still much to learn about the man himself — his inner thoughts, his private communications, and his personal traits. The biographical story is, after all, the most revealing of all stories.

The Boxer

Richard Posner turned 75 earlier this year (on January 11th – the same date of William James’ birth). The New York born jurist is in good health and exercises regularly: “A great deal,” he told me. “It’s my principal non-working activity.” When not reading or writing, he expends his energy on an elliptical trainer and does balance exercises. “I have an elliptical trainer at home and also do a lot of walking outside,” he adds. He takes heart-pumping walks inside, too, and is known for climbing “the stairs to his office on the 27th floor of the Everett M. Dirksen Federal Building in Chicago.”

UnknownTo look at his fit frame one might guess that he exercises. And like all else in his life – be it mental or physical – Posner takes such matters seriously. “I have a personal trainer twice a week. He puts me through all sorts of strenuous exercises, including push-ups and pull-ups.” And then there is “boxing with a sixty-pound hanging leather punching bag (not a live person).”

Though he dislikes professional boxing, he sure loves to box . . . with a boxing bag, that is. He pounds away with his Everlast gloves landing blow after body blow at this stuffed specimen of a man. It is all part of his private workout regimen in the basement of his trainer’s quarters. “I had [a punching bag] of my own,” he says, “but I had to give it away because it upset the cat [the famed Pixie]. The bag was suspended from a steel frame that, because of the unevenness of the floor in the only room in which the contraption fit, rattled disconcertingly.” So he took his pounding elsewhere. And why this form of exercise? “My doctor says that boxing is excellent exercise,” he adds.

The boxing image fits – well, sort of. On the one hand, Richard Posner is a natural born boxer given all the cerebral bouts he has been in over the years – and he still returns to that ring time and again like a resilient Rocky Balboa. On the other hand, Richard Posner is too brainy / too soft mannered / and too genteel to engage in the real sport. Besides, he’s too pragmatic to like such a brutal sport: “I worry about brain damage to professional boxers,” he tells me.

Mix his cerebral and physical sides and what do you have? Quite simply, a man who likes to punch but doesn’t like boxing; a man who savors the sport of dialogic give-and-take but disdains the mano a mano reality of the ring; and a man who, at 75, is determined to remain mentally and physically fit, if only to force the Grim Reaper to go several extra rounds.

Holmes & Posner: Similar Yet Very Different

Justice Holmes

Justice Holmes

Sometimes comparisons are made between Oliver Wendell Holmes and Richard Posner. And Holmes is the jurist Posner most respects – that “most illustrious figure in the history of American law” is how he described him in the book Posner edited of the great Justice’s works. However true such comparisons might be, it is useful to consider how the two jurists were situated at the same points in their lives. To do that, one must turn the biographical clocks back and then forward.

* * * *

1916 was a good year, a very good one for Justice Holmes. That said, he penned no great opinions or scholarly works and gave no significant speeches that year. And yet it was a memorable year. Why? Because that was the year that Holmes turned 75 on March 8th. Four events occurred that year that made it a special one in the jurist’s life.

First, there was the small dinner party that his wife Fanny had arranged. It was a modest affair: a few friends (all accomplished men), some good food and drink, and birthday well wishes to cap it all off. As the guests left, the tall and tired jurist headed towards his library when he suddenly heard strange sounds – the sounds of birds, many of them. What could it be? He went downstairs to find out. Much to his surprise, and there beyond the parlor, was young group of admirers tooting away with bird callers in his birthday honor. All Fanny’s doing, of course. There was “much laughter and jaw,” recalled Holmes, “until after midnight.” One of celebrants went so far as to write “some very pretty verses,” which touched the white-haired Justice. By the time the parting hour arrived, Holmes was quite content: “Altogether it was very charming.”

UnknownSecond, there was the Harvard Law Review festschrift (29 Harv. L. Rev. 565) that Felix Frankfurter had organized. Now OWH was being publicly honored, and in print. And what an esteemed group of men: Professors Felix Frankfurter and Frederick Pollock, Deans Roscoe Pound and John Henry Wigmore, Judge Learned Hand, and Morris Cohen, the philosopher. Writing to Frankfurter in April of 1916, Holmes expressed his appreciation: “Very few things in life have given me such pleasure.”

Third, in June of 1916 the Senate confirmed Louis Brandeis. Once confirmed, Holmes opined that Brandeis “will make a good judge.” And so he sent him a very short telegram: “WELCOME.” It was the beginning of a judicial friendship that would help buttress Holmes’ fame . . . even at 75.

And finally, that was the year that Holmes met Harold Laski, a young British political theorist who would also have a hand in shaping the future of Holmes’ thought.

Of course, Holmes lived another 15 years, during which time he solidified his reputation and further secured his position in the gallery of great jurists. In the years following his 1916 birthday, Holmes wrote memorable opinions (majority and separate) in cases such as: Hammer v. Dagenhart (1918), Schenck v. United States (1919), Abrams v. United States (1919), Silverthorne Lumber Co. v. United States (1920), Adkins v. Children’s Hospital (1923), Gitlow v. New York (1925), United States v. Schwimmer (1929), and Baldwin v. Missouri (1930).

* * * *

Holmes savored the shared life; Posner bears it. Holmes socialized, Posner exercises. As for birthday celebrations and the like, RP has no time and little patience for such flattery: “I don’t like celebrations or parties” he says with icy certitude. At 75, there were no festschrifts for Posner (though an issue of the University of Chicago Law Review commemorated his 25 years on the bench – notably, the issue contained several critical essays). And no Louis Brandeis or Harold Laski is likely to influence his cerebral course (though in earlier years he had Aaron Director, George Stigler, and Gary Becker, who all helped to shape his thoughts). And so, when his life clock turned 75, it came and went sans any surprises . . . and that’s the way he likes it.

Screen Shot 2015-01-02 at 10.57.57 AMBy three score and fifteen, Posner, like Holmes, has accomplished much. Notably, he has written more (far more) than the famed jurist, and Posner’s Economic Analysis of Law may well have as much influence and staying power as Holmes’s The Common Law. And in his finer opinions, Posner displays “a fierce intellectual curiosity, a genuine engagement with ideas, an eagerness to cut through the legal babble to get to the core of the issue,” says Professor Geoffrey Stone, “and an evident delight in occasionally reaching results that startle admirers and critics alike” — all exceptional traits for a sitting federal appellate judge.

While Judge Posner has no single opinion that is likely to be as memorable as Holmes’s Lochner dissent (he is, after all, a circuit judge, not a Justice), the cumulative impact of Posner’s many writings (both on and off the bench) has certainly left a significant imprint on American law. Even so, the question remains: Will he prove to be like Holmes and further solidify his fame, or has he already reached the pinnacle of his career in law and letters?

Methodology Matters

Judicial greatness is often in the eye of the beholder. Many of the standards adopted for determining the greatness of a judge are designed to ensure the selection of particular judges or to favor judges who reach certain substantive outcomes. For example, in suggesting creativity, intelligence, and frequency of citation as plausible yardsticks for measuring judicial greatness, Judge Richard Posner has largely settled on standards that reflect best on himself. — Michael J. Gerhardt (1995) 

Though he cares not about reputation or greatness when it comes to his own record (or so he likes to say), he does like to fish in such waters – only witness his book Cardozo: A Study in Reputation (1990) and his 1994 Yale Law Journal review essay of Gerald Gunther’s biography of Learned Hand (the review is titled “The Hand Biography and the Question of Judicial Greatness”). In both works Posner went to great lengths to formulate criteria for measuring judicial reputation and/or greatness. Though it is hard to imagine that the idea did not occur to him, Professor Gerhardt’s point is surely true – Posner does rather well by Posnerian criteria. (See Ronald Collins & David O’Brien, “Gauging Reputations, National Law Journal, pp. 13-14, April 1, 1991.)

Whatever the methodology of measuring judicial greatness, the sheer volume and diversity of the Posner corpus of writings render the evaluative biographical task rather daunting. It is a brute biographical fact: The Posnerian tentacles are too numerous and reach too far for any single work by a lone biographer to grapple with authoritatively. To further the biographical process along, some exacting scholarly work would have to be done by several experts who could evaluate Posner’s take on a given field of the law (see e.g. here). Those areas would include:

  • administrative law
  • animal rights (see here & here for RP’s views)
  • antitrust
  • arbitration
  • bankruptcy
  • civil procedure
  • constitutional law
  • contracts
  • corporate law
  • criminal procedure
  • federal courts
  • habeas corpus
  • insurance
  • intellectual property
  • jurisprudence
  • labor law
  • prisoners’ rights
  • securities law
  • taxation
  • telecommunications law, and
  • women’s rights

By the same measure, there would also need to be experts in economics and various areas of the humanities. Posner’s writing style would have to be studied as well (on this count Mr. Domnarski has already done much, and ably so, and will do more in his forthcoming biography of the Judge). Then there is Posner’s view of judging.

Judges are not umpires, calling balls and strikes.Richard Posner (1995)

My job is to call balls and strikesJohn Roberts (2005)

Additionally, there would have to be some allowance for a probing study the man himself — the persona of Richard Posner. After all that, someone would have to step back and compile a comprehensive overview in order to put things in full biographical perspective. (Such a work might be along the lines of one of the books in the Cambridge Companion series.)

And yet more is needed: If it were to be rigorously true to its subject, any intellectual-biographical portrait of Richard Posner would include, but could not be limited to, some tabulation of how other courts and scholars have referenced him – not just the number, but also the nature of the citations. Beyond the citation count, there is this question: If one were to map out the effects, if any, of Posnerian thinking over time, what would they show? Not just the economic effects, but also the jurisprudential, political, social, psychological, environmental, and human (as in humane) effects? If his reputational footprint were to prove as immense as his publication record, what would what future generations think of a Posnerian social order?

Masked Man Read More