Category: Jurisprudence

Posner
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The Maverick – A Biographical Sketch of Judge Richard Posner: Part I

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Below is the first installment in a multi-part series of posts on Seventh Circuit Judge Richard Posner. The first two installments consist of an unconventional biographical profile of the Judge. These posts will be followed by a series of posts consisting of the Judge’s candid and often unexpected responses to numerous questions I posed to him along with those of 24 noted legal figures. In the process, Judge Posner bursts into the breach with frankness about his views on privacy, the exclusionary rule, NYT v. Sullivan, intellectual property rights, law and economics, constitutional interpretation, legal education and scholarship, and the politicization of the judiciary. With Posnerian resolve, he also speaks of his own life, his onetime thoughts on being a Supreme Court Justice, his cherished feline, and even his favorite rock stars. Given all that, we selected “Posner on Posner” as the title for this series.

Note: Some links will open only in Firefox or Chrome but not in Safari. 

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A man[’s] . . . thinking should be

cosmopolitan and detached. He should

be able to criticize what he reveres and loves.

                                                — Oliver Wendell Holmes, Jr., February 4, 1901

He is like no other. Cool, calm, and calculating (in a methodical sense, that is). To watch him, one might think him shy, if only because of the way he averts his blue eyes when speaking. His complexion is fair (sun sensitive), which makes for a striking contrast to the dark suits he often dons. His appearance is ordinary, highlighted only by a blue Oxford linen shirt and wide-framed rectangular glasses. He speaks in a measured manner and while his voice can be monotonic, his oral style can fluctuate from serious to humorous. At times, his expression is flat, though once and a while a chuckle erupts, prompted by some folly he underscores or some hypocrisy he exposes while discussing this or that point or person. His public conversations with others can seem singular; they smack of a man thinking aloud.

Candor is his calling card, print is his preferred medium, and the moves of the mind are his raison d’être. One is reminded, in a fleeting philosophical sense, of Ludwig Wittgenstein. The “atypical . . . manner and character” of both men only adds to the resemblance. That said, there is one big difference: He is no parlor philosopher; he is a man who lives to transform ideas into action.

To some, he is an irritating gadfly. To others, he is a cold-blooded pragmatist. To many, he is an enemy of liberalism, while to many others he is a foe of conservatism. To more sensitive types, his economics-grounded “thinking is inevitably without compassion and often cruel.” To more cerebral types he is “our most prominent rationalist.” To those whose world is divided along uncompromising ideological lines, his views on the Second Amendment are horrendous and tyrannical, even if he is quite libertarian when it comes to legalizing marijuana, “cocaine, heroin, methamphetamime, LSD, and the rest of the illegal drugs.” To still others, he is a mental maverick gunning for any kind of specious arguments (especially self-righteous ones) that pass for gospel. And to yet others, he is the only one who dares to describe law as it is here on mortal earth rather than how it might be in some utopian salon. In that realist respect, there is even a Machiavellian streak in him.

He is, to be sure, an acquired taste. Even to those who know him, there is a distant quality about his personality. Perhaps because of that, those who know him appreciate his wit and playfulness all the more. Not one to hand out a diplomatic compliment, merit is the measure that rules his life.

Past as Prelude

Richard A. Posner, Harvard Law Review photo

Richard A. Posner, Harvard Law Review photo

He is Richard Posner. At 75, the New York City born jurist shows no signs of slowing down. If anything, his cerebral game is as good or better than it was in 1959 when he graduated summa cum laude from Yale College at age 20 (he was an English major with an avid interest in Yeats) or when he graduated first in his class from Harvard Law School in 1962 (he was President of the Harvard Law Review). 

His credentials as a young man all signaled future greatness – law clerk to Justice William J. Brennan (1962-63 Term), assistant to Commissioner Philip Elman of the Federal Trade Commission (1963-65), and assistant to Solicitor General Thurgood Marshall (1965-67). In that capacity and others, he wrote some 40 briefs and argued ten cases before the Supreme Court. The cases he argued were:

  1. Consolo v. Federal Maritime Commission (1966) (audio here)
  2. Accardi v. Pennsylvania Railroad Co. (1966) (audio here)
  3. United States v. Von’s Grocery Co. (1966) (audio here)
  4. First National Bank v. Walker Bank (1966) (audio here)
  5. Illinois Central R. Co. v. Norfolk & W.R. Co. (1966) (audio here)
  6. Honda v. Clark (1967)(audio here)
  7. United States v. Arnold, Schwinn & Co. (1967)
  8. Will v. United States (1967)
  9. Volkswagenwerk Aktiengesellschaft v. Fed. Mar. Comm’n. (1968)
  10. National Broiler Marketing Association v. United States (1978) (Frank H. Easterbrook was on the brief for the government on the other side)

Posner also served as general counsel on President Johnson’s Task Force on Communications Policy (1967-68). Soon enough the legal academy beckoned him, first as an associate law professor at Stanford (1968-1969) and later as a professor at the University of Chicago Law School (1969-1981). It was during that time that at age 34 he published his momentous work, Economic Analysis of the Law (1973) (now in its 9th edition).

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The virtual Posner

As if all of that were not enough, “Posner augmented his professional life . . . found[ing] Lexecon Inc., a [profitable] consulting firm that tried to put into practice [his law and economic] theories. A large portion of Lexecon’s early business, when he was still a partner, was advising companies as to whether their competitive practices would run afoul of antitrust laws.” In late October of 1981, after his time in the legal academy, Posner then pursued a judicial path as a Ronald Reagan appointee to the Seventh Circuit. In the process, he traded wealth for fame – not what one typically expects from a unapologetic cost-benefit capitalist.

One more thing: In 2006 the ever-colorful Judge stared as an avatar in Second Life, an online virtual community.

The Brennan Clerkship

I was a little disappointed in the Supreme Court. I had a

more elevated opinion of it as a law student than it merited.

                                                                            Richard Posner

To return to his clerkship with Justice Brennan: It came to him via Paul Freund (1908-1992), the famed Harvard professor of constitutional law. In those days it was customary for certain law professors to select law clerks for some of the Justices, this even without a prior clerkship. Young Posner (age 23) was one of Freund’s two picks.

Once he arrived in Washington, D.C., Posner went to work on a variety of jobs for Justice Brennan. It has been reported that during that time he “wrote up an opinion arguing the reverse of Brennan’s [initial sense of the] decision.” Things worked out, nonetheless, and the clerk’s opinion proved “so compelling that Brennan and the Court changed their minds and adopted it.” That unanimous opinion, replete with 83 footnotes, was Sanders v. United States (1963), a habeas corpus case.

Posner also had a hand in writing another habeas case, Fay v. Noia (1963). And then there was NAACP v. Button (1963), a First Amendment civil rights case he authored. For Harry Kalven (1914-1974), the renowned First Amendment scholar, the Button opinion was an important one. “The Court,” he wrote in The Negro and the First Amendment (1965), “offers a generous view of the range of First Amendment protection, a view which seems to me to be indisputably correct although the Court had never previously been given an appropriate occasion for announcing it.” Kalven found it “exciting” that the opinion appeared to break “new ground.”

In a 2013 interview Posner reminisced about his clerkship at the Court: “The most significant experience of my clerkship was happening to work on a case assigned to Justice Brennan, an antitrust case called United States v. Philadelphia National Bank (1963) [the vote was 5-1-2 with Justice White not participating and Justice Harlan dissenting]. And working on that greatly stimulated my interest in antitrust law, and my time in Washington after the clerkship – I was there for another five years – I was mostly concerned with antitrust issues. So that was, I’d say, the most significant experience I had at the Supreme Court.”

Four Brennan-Posner opinions – there is a certain irony here, namely, that these opinions were written by a law clerk who when he became a judge refused to permit his own law clerks to write his judicial opinions. Then again, as Judge Posner once quipped, “Life is full of surprises . . . .”

judgeposner_2010Mind Games — A Multidimensional Man

Richard Posner is a man of the mind. He welcomes the challenges of complexity; he takes pride in showing the hollowness of legal abstractions; and he loves to simplify the complex without leaving it senseless. Speaking in a soft but nonetheless deliberate tone, he delights in exposing babble masquerading as legal argument, and can be rather relentless when counsel persists in being evasive (see, e.g., here).

In a legal world divided, on the one hand, by jurists who demand the rigidities of rules in matters of interpretation, and jurists who, on the other hand, insist on the flexibility of standards, Posner readily sidesteps ideological boundaries. As he sees it, such disputes are better understood as psychological in character than logical in nature. He prefers a more pragmatic contextual approach. To draw upon his own words in MindGames Inc. v. Western Publishing Co. (2000): “some activities are better governed by rules, others by standards.” Thus, in MindGames the Court declined to be bound by a 1924 rule regarding new businesses and lost profits.

Another Posnerian trait: He is not oblivious to the obvious, even when others are. And he does not hesitate to speak sternly when the circumstances warrant it, as in a class actions case (Eubank v. Saltzman) involving a lawyer who took far too many liberties. There, Posner used the opportunity of the controversy to demonstrate the factual oddities and ethical problems with the case, this while offering several learned yet pragmatic observations about this body of the law and its efficient operation. He did much the same in another class action case (Redman v. Radio Shack Corporation) in which he was quite critical of a settlement that offered Radio Shack customers about $830,000 worth of coupons while offering the lawyers who negotiated it $1 million. He was equally outspoken in a recent copyright case (Klinger v. Conan Doyle Estate, Ltd.). And his edgy wit and probing reasoning were much apparent in a pair of recent same-sex marriage cases (Baskin v. Bogan and Wolf v. Walker) in which he was particularly hard on the counsel for the state during oral arguments in those cases.

Color him with many stripes. Posner relishes the study of economics; he savors the lure of literature; he delights in clearing the air polluted by scandalous politics; he enjoys applying his free-market thinking to explain the various economic crises of our time; he relishes the chance to confront head on those issues that bedevil cultural critics; and he loves his life in the law (be it jurisprudence, antitrust, intellectual property, regulatory law, patent law, labor law, criminal law, or constitutional law). In a world increasingly bereft of public intellectuals, he rises from the lifeless ashes like a modern-day Phoenix. True to that cerebral calling, Posner has personal opinions, often controversial, on everything from sexual behavior to judicial behavior and beyond to subjects as diverse as terrorism, global warming, aging, moral and literary theory, and even the risks of catastrophic harm due to an asteroid colliding with the earth.

Unconventional Appeal Read More

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FAN 41 (First Amendment News) Three Harvard Law Review essays discuss Justice Breyer’s free speech jurisprudence

  • Judge Breyer has a unique zig-zag style. Ralph Nader (confirmation hearing statement, July 15, 1994)
  • I do not rest my conclusion upon a strict categorical analysis. — Justice Stephen Breyer (concurring in United States v. Alvarez, June 28, 2012)
  • The single most important area of Breyer’s work on the Court has been his opinions on the First Amendment, in which he has developed a unique and pathbreaking approach to issues of freedom of speech. — Paul Gewirtz (Yale Law Journal, 2006)
Justice Stephen Breyer

On the one hand . . . but then on the other

When it comes to free speech, he is darling of the Liberal Left . . . or some on the Left, or of some on the Left in the legal academy, or of those on the Left who abhor rulings such as Citizens United v. FEC (2010) and McCutcheon v. FEC (2014). To others, he is the Justice who got the First Amendment right (albeit in dissent) in cases such as Holder v. Humanitarian Law Project (2010) and Garcetti v. Ceballos (2006). Many of those same defenders shy away from their praise when it comes to opinions such as the one Justice Breyer authored in Randall v. Sorrell (2006).

In his pragmatist approach, one will readily discern the vernacular of ad hoc balancing, of  “competing constitutional concerns” or “First Amendment interests . . . on both sides of the legal equation.” Mindful of such concerns, he asks: Are the “restrictions on speech disproportionate when measured against their speech-related benefits”? And why? What is the purpose of such balancing? He responds: to “facilitate a conversation among ordinary citizens that will encourage their informed participation.” To that end, government may limit speech in the supposed service of “preserving a democratic order” or for the purpose of promoting and protecting  “collective speech.” In this way an others, and dating back to his 1997 concurrence in Turner Broadcasting System, Inc. v. FCC II, Stephen Breyer has set out to rewrite First Amendment jurisprudence.

In light of his two decades of service on the Supreme Court, I thought I would offer some background information on how the Justice has decided First Amendment free expression cases (29 are listed below), his thoughts on free speech generally, and how scholars and lawyers have viewed his jurisprudence in this area. A sketch of all of that is set out below by way of select references to various sources.

HLR Essays in Honor of Justice Breyer 

The November issue of the Harvard Law Review has a collection of essays in honor of Justice Stephen Breyer’s twenty years of service on  the United States Supreme Court. The following three essays concern the Justice’s free speech jurisprudence:

Let me pose a hypothetical

Let me pose a hypothetical: “Candidate Smith — we can only give him $2,600 — has a lot of supporters.”

Active Liberty: Justice Breyer on Free Speech

In his 2005 book, Active Liberty: Interpreting our Democratic Constitution, Justice Breyer devoted a chapter (pp. 39-55) to the question of free speech.

Roberts Court Era: Justice Breyer’s Majority or Plurality Opinions in Free Expression Cases

In what follows, S indicates that a majority of the Court sustained the First Amendment claimed whereas D means that it was denied.

Separate Opinions: Below is a list of separate opinions authored by Justice Breyer in free expression cases decided during the Roberts Court era:

a pensive moment

the pensive pragmatist

Justice Breyer’s Pre-Roberts Court Opinions: Selected Cases 

First Circuit Free Expression Opinions Read More

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FAN 40 (First Amendment News) Steve Shiffrin & Bob Corn-Revere debate “What’s Wrong with the First Amendment?”

Bob Corn-Revere & Steve Shiffrin (with Joel Gora in background)

Bob Corn-Revere & Steve Shiffrin (with Joel Gora in background)

For those who savor good give-and-take talk about the First Amendment, last Wednesday evening was a memorable one as Professor Steven Shiffrin debated Robert Corn-Revere with Ashly Messenger moderating. The topic: “What’s Wrong with the First Amendment?” Why that title? Because that’s the working title of Professor Shiffrin’s next book.

The New York city event was the third in a series of First Amendment salons held at the offices of the law firm of Levine, Sullivan, Koch & Schulz. The program was introduced by Lee Levine, who announced that this was the first salon done in conjunction with the Floyd Abrams Institute for Freedom of Expression at Yale Law School. The event was video cast live to the firm’s office in Washington, D.C. and to the Abrams Institute in New Haven.

Among others, those attending the event included: Floyd Abrams, Sandra Baron, John Berger, Joan Bertin, Vince Blasi, Kali Borkoski, Karen Gantz, Joel Gora, Laura Handman, David Horowitz, Maureen Johnston, Adam Liptak, Greg Lukianoff, Tony Mauro, Wes Macleaod-Ball, David Savage, David Schulz, Paul Smith, and James Swanson.

The exchange was robust as the Cornell professor took articulate and passionate exception to several of the Roberts Court’s First Amendment rulings, including United States v. Stevens, Brown v. Entertainment Merchants Association, and United States v. Alvarez — all cases in which Corn-Revere had an amicus’ hand in defending the free speech claims. No potted plant, the First Amendment lawyer fired back with facts, figures, and history as the two men debated the pros and cons of balancing vs strict scrutiny approaches to free speech decision-making. The animated discussion was always friendly and at times even funny as the two traded witty retorts.

The dialogue was enriched as Vince Blasi, Katherine Bolger, Joan Bertin, Paul Smith, James Swanson, and Floyd Abrams, among others, weighed in. As the discussion developed one could almost see minds bouncing back-and-forth as Ms. Messenger pressed the two seasoned First Amendment experts. The evening ended on a high note as Shiffrin and Corn-Revere laughed and shook hands. (Re earlier salons, see here and here.)

Coming soon: book by Seana Shiffrin 

UnknownThe Shiffrin name has long been a familiar one in First Amendment circles — a name that has both invited and provoked thought. Now comes another Shiffrin, UCLA philosophy and law Professor Seana Shiffrin, who is a scholar in her own right — someone quite attune to jurisprudential nuance.

If the case of United States v. Alvarez (2012) — the Stolen Valor case — caught your attention, and if you were intrigued by Chief Judge Alex Kozinki’s separate opinion in the case when it was before the Ninth Circuit, then Speech Matters: On Lying, Morality, and the Law (Princeton University Press, Dec. 21, 2014) by Seana Shiffrin is a book for you. And it is more, philosophically much more.

Here is the publisher’s description of the forthcoming book: “To understand one another as individuals and to fulfill the moral duties that require such understanding, we must communicate with each other. We must also maintain protected channels that render reliable communication possible, a demand that, Seana Shiffrin argues, yields a prohibition against lying and requires protection for free speech. This book makes a distinctive philosophical argument for the wrong of the lie and provides an original account of its difference from the wrong of deception.”

“Drawing on legal as well as philosophical arguments, the book defends a series of notable claims — that you may not lie about everything to the “murderer at the door,” that you have reasons to keep promises offered under duress, that lies are not protected by free speech, that police subvert their mission when they lie to suspects, and that scholars undermine their goals when they lie to research subjects.”

“Many philosophers start to craft moral exceptions to demands for sincerity and fidelity when they confront wrongdoers, the pressures of non-ideal circumstances, or the achievement of morally substantial ends. But Shiffrin consistently resists this sort of exceptionalism, arguing that maintaining a strong basis for trust and reliable communication through practices of sincerity, fidelity, and respecting free speech is an essential aspect of ensuring the conditions for moral progress, including our rehabilitation of and moral reconciliation with wrongdoers.”

Table of Contents

Chapter 1: Lies and the Murderer Next Door 5

Chapter 2: Duress and Moral Progress 47

Chapter 3: A Thinker-Based Approach to Freedom of Speech 79

Chapter 4: Lying and Freedom of Speech 116

Chapter 5: Accommodation, Equality, and the Liar 157

Chapter 6: Sincerity and Institutional Values 182

I plan to say more about this book in the coming year. Stay tuned.

UnknownNew book by Danish editor of newspaper that published cartoons of Mohammad

The author: Fleming Rose 

The book: The Tyranny of Silence (Cato Institute, Nov. 14, 2014)

Description: “When the Danish newspaper Jyllands-Posten (Viby, Denmark) published the cartoons of the prophet Mohammed nine years ago, Denmark found itself at the center of a global battle about the freedom of speech. The paper’s culture editor, Flemming Rose, defended the decision to print the 12 drawings, and he quickly came to play a central part in the debate about the limitations to freedom of speech in the 21st century. Since then, Rose has visited universities and think tanks and participated in conferences and debates around the globe in order to discuss tolerance and freedom. In The Tyranny of Silence, Flemming Rose writes about the people and experiences that have influenced the way he views the world and his understanding of the crisis, including meetings with dissidents from the former Soviet Union and ex-Muslims living in Europe. He provides a personal account of an event that has shaped the debate about what it means to be a citizen in a democracy and how to coexist in a world that is increasingly multicultural, multi-religious, and multi-ethnic.”

See Fleming Rose here re his recent appearance on The Last Word with Lawrence O’Donnell.  

1-A groups urge school district to select books “solely on sound educational grounds” Read More

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CJ Katzmann weighs in with new book on statutory interpretation

cover-197x300While there seems to be no end to books, articles, essays, blog posts and symposia on constitutional interpretation, relatively little attention is paid to the all-too-important issue of statutory interpretation. Well, that is changing with the advent of a new book by the Chief Judge of the Second Circuit Court of Appeals. The work is aptly titled Judging Statutes (Oxford University Press) and its author is Robert Katzmann. It is already drawing impressive attention as evidenced by the following:

Among other scholarly venues, there have already been programs on the book at the following places:

Of course, Judge Katzmann does not, by any measure, occupy this field alone. His chief scholarly rivals are Justice Antonin Scalia and Mr.  Bryan A. Garner, who two years ago published the much-noticed Reading Law: The Interpretation of Legal Texts. To be sure, the Chief Judge has a different interpretive take, though he approaches his subject with diplomacy, nuance, and a comprehensive knowledge of how the federal legislative process works. (Another leading book in this area is Legislation and Statutory Interpretation by William Eskridge, Philip Fricky and Elizabeth Garrett.)

Federal appeals judge Robert Katzmann’s new book [is attracting impressive attention]. Justices Ruth Bader Ginsburg and Sonia Sotomayor were in the front row of the audience on Tuesday at a Georgetown University Law Center event marking the Sept. 11 publication of Katzmann’s book Judging Statutes. . .  . The Justices’ presence signaled that, as Georgetown Law dean William Treanor put it, Katzmann’s book is ‘already having incredible influence, even as it is just being published.'” Tony Mauro

 In case you missed it, check out my Q & A interview with Chief Judge Katzmann over at SCOTUSblog.

(Full disclosure: I have known Robert Katzmann for many years.)

→ Coming soon: POSNER ON POSNER (a five-part Q & A series prefaced by an unconventional two-part biographical essay). 

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To Sarat or Not Sarat

As in Austin Sarat, Law and Humanities scholar at Amherst College.  As in one of the leading figures within the Association of Law Culture and Humanities, which has become one of my favorite destinations over the years for engaging discussion across the disciplines.  (FYI, today is the deadline to submit abstracts to the Law Culture and Humanities Conference being held at Georgetown this year).
Glancing across Sarat’s scholarship one might notice a fascination with documenting the morbidity of law.  Images of war, death, and imprisonment filter the landscape of writings; the images are used to magnify their contrast. They create discourses in binaries.  We understand legal violence distinctive from non-legal violence; death distinctive from non-death; and imprisonment distinctive from non-prisoned life.  Sarat sums this up in his Article Violence, Democracy, Responsibility, and the Problem of Punishment.

 

Moreover, by equating the conditions of legal legitimacy with that masking, much of that jurisprudence promotes righteous indifference and allows law’s violence to continue unabated. I am neither so idealistic nor so naive as to imagine that a change in legal theory would in itself end violence done, authorized or approved by legal institutions and officials. Still the energy in much of my work on punishment comes from a desire to interrogate legal theory in order to understand how law, surrounded by so much pain, is, nonetheless, able to maintain its calm, bureaucratic facade.

 

Drawing on themes that prompt considerations of justice and violence, it’s no wonder that Sarat and Robert Cover were walking the same halls in New Haven in the early 1980’s.  I don’t know if Sarat and Cover interacted much.  Really, does it matter?  Sarat himself was a well accomplished scholar in the humanities prior to enrolling at Yale (I mean how many of us as one L’s had their professor begin a civil procedure class by reading and discussing our own work?) .  Perhaps he and Cover never interacted.  I’d like to think they didn’t but that the recursiveness of space, time and ideas latched on to them independently as they traveled the halls.

Besides violence, Sarat’s scholarship prompts me to think about similar themes in my own work.   Loneliness has been a particular theme of mine.  Robert Penn Warren, Fydor Dostovsky, and Flannery O’Connor have been shaping devices of this theme.  They play themselves out in a chorus of questions about space, roles, isolation, and time.  When Warren writes about the South as a Lonely place, he prompts me to wonder whether and how time shapes people.  For those three, time is the violence of memory, sometimes maintained through static relationships of property, law, family, and culture.  Sarat likewise prompts us to consider how time shapes our understandings of justice and violence.  He writes in the same article prompted above:

For me, democracy requires a particular orientation toward time. Democratic temporality is the time of change, of reconsideration. It is open-ended and open to a sense of the endlessness of time. Acts of punishment, even if we had a way of calculating what people deserve, are always in some sense the servants, not the masters, of time. Numerous authors have highlighted the problem of time in asking whether the person being subject to punishment, 2, or 12, or 20 years after the crime is really the same person as the one who committed the crime that justified the punishment in the first place. When, many years ago, Justice Brennan described the death penalty as taking away the right to have rights, he might well have said that no punishment that seeks to be timeless, or stop the movement of time, can be reconciled with a democratic theory of punishment.

The conception of time as a marker of change is one, I think Robert Penn Warren would greatly admire.  On May 15, 1961, The New Republic published a review of Warren’s essay The Legacy of the Civil War.  In the review essay, writer Peter d’a Jones aligned Warrens views with Robert Patterson of the Citizens Counsel of Mississippi, a group formed following the Supreme Court’s decision in Brown v. Board of Education.  The group, put simply, was designed to use legal (and non-legal) violence to stymie desegregation.
Following the review of Warren’s essay, Warren wrote a letter to the New Republic editor:

Dear Sir,

This letter is promoted by a review of my essay the Legacy of the Civil War, which appeared in your issue of May 15.  I could wish that Mr. Peter d’a Jones had thought better of my essay or at least of my intellectual integrity, but I am not now writing in defense of either.  What I want to do here is disabuse those readers who may feel, from Mr. Jones’ review that I have much sympathy with Mr. Robert Patterson of the Citizens’ Committee of Mississippi, whom he cites with, perhaps, some effect of guilt by association.  

The quickest thing for me to do is state three things — things which it is strange for any citizen to feel constrained to state.

1 It is morally right, as well as politically and economically necessary, that all the rights and privileges of American citizenship be guaranteed to all citizens.  
2 A man’s worth should be judged by the qualities of his manhood.
3 Any official of any state who does not honestly and vigorously endeavor to punish, with full rigor, any violence against or coercion of any individual or group has violated his public trust and should be impeached.  

I suppose that a reader can easily infer from these statements my attitude in specific instances, as I had assumed one might from other writings of mine, including the Legacy of the Civil War; but I shall add that I think Dr. Martin Luther King a great man, and that the sit ins conducted according to his principles are morally unassailable, and will win.  One reason they will win is that they offer, even to the man howling from the sidewalk, an exhibition of courage, dignity, and self control.  

                        Very Respectfully Yours,

                        Robert Penn Warren

P.S.  One more thing: since Mr. Jones takes the trouble to quote from me in 1929, I wish he had taken the trouble in his researches to glance at my explicit repudiation some time back, of what I said in 1929.  In 1929, in my youth, I was wrong — and even now, I do not feel myself entirely above error.  

Warren’s reflection of change over time merges with his views of social responsibility.   For what its worth, Warren was also wandering around New Haven in the early 1980’s.  How I would enjoy sitting at a table amongst Warren, Sarat and Cover as they talked about these things.  How the walls in New Haven must have been ablaze with ideas in the early 80’s.

(P.S. Robert Patterson was also former Captain of the Mississippi State football team — ergo my promised college football reference, in case anyone needed an irrational reason to hate the number one ranked team).

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The Role Law and Literature Should Play in a Law School

Some may ask what role should liberal arts style courses play in law school where we are increasingly focused on bar exams and practice ready skills.   It may take me a while to unravel that answer with the gusto and the framing it deserves.  I think anyone that regularly teaches Law and Literature has been asked some variant of this question.  The course doesn’t have the safe luxury of “well its on the bar exam,” or even the more sardonic return of “well, but of course it underlies much of legal thought and practice.”  See, e.g., Law and Econ, Law and Social Theory, and Legal History.

Let me make a bold proclamation.  The law and literature course, perhaps more than any other, asks students to wrestle with their subjective views of the law.  It’s interesting, in a course that deals with Constitutional Law, for example, there is the finality of how the court approached the problem (whether we agree with the outcome or not).   In Law and Literature on the other hand, the course encompasses the views of the professor, the authors, and their fellow students as they encounter these views.  Sometimes worlds are created in which those concrete legal frameworks are disembodied (See, e.g., Margaret Atwood’s The Handmaid’s Tale).  Sometimes, the fictional worlds embrace the world as we know it, and offer stunning critique to its foundation (See, e.g., Harriet Beecher Stowe, Uncle Tom’s Cabin). That’s not to say that other courses, (take a UCC course), is not rife with highly charged emotional queries (notwithstanding my critique, my explanation for whether the disposition of collateral equates to proceeds is a highly charged event!).  It is saying that in a time where the ABA is prompting law schools to create standards that push the law school experience towards so-called objective standards of evaluation (see revision of section 302 in the ABA standards), the role of encountering, critiquing, explaining, and understanding different subjective understandings of the law is critical.   We should not be afraid to encounter nor express our subjective views in the context of critical dialogue.

My view is that Law and Literature is a course that offers students not only the opportunity to understand themselves better but to learn to dialogue about the subjective views of law.  A few years ago, Yale Law School offered a course titled “The Book of Job and Suffering.” Unfortunately, at many law schools such a class would never be taught for fear that the subject strayed too far from what law schools are suppose to do — at least not under that title.  However such a course is precisely the kind of law and literature course we should be teaching. Isolating the critical component that suffering may play in the narrative for law students, I imagine, was a powerful experience for those students and the professor.  Powerful because they all have suffered something, I’m sure, though undoubtedly it was uneven.  Students learn to dialogue about themselves and the text in a group where each other’s respective experiences help frame and isolate the way the text moved within the group.   At one and the same time, students in a law and literature class learn about themselves, as members of a group, a class and as an individual.   This is the idea of Law and Literature that James Boyd White framed so well — the engagement of the reader with the text forcing the reader to accept or not accept the writer’s framed world. [Perhaps Boyd’s best framing of this encounter is his book This Book of Starres: Learning to Read George Herbert, in which Boyd wrestles with the text as reader primarily].

This role of teaching students about themselves is critical if not necessary to shaping who they are as counselors and advocates for their clients.  Of course they are things we should care about as shaping lawyers. But should we have to isolate them into an ABA objective or standard.   In a way, it cheapens the process to do so.

I fear that courses like Law and Literature, in which students engage in thoughtful discourse, may find themselves replaced with others that fail to live up to the promise of helping students understand themselves in a legal environment and instead only focus on the particulars of interacting in the legal environment.   There is nothing wrong with a movement in legal education that attempts to focus institutional resources to critically examine whether the law school is best preparing students for the modern legal environment.  But, that doesn’t mean that our students [or our faculty] are better off without having the dialogues and communities that law and literature help promote and shape in the law school environment.

2

Scottish Referendum and Evolutionarily Fit Legal Systems

Some thoughts in the aftermath of the scottish referendum.

Why do regions want to secede? To some extent, secession attempts imply a desire for different rules than the state provides. From the individual perspective, that of the individual scott, basque, or chechen, this suggests the state’s rules do not give the individual the freedom to do what the individual desires. From the collective perspective, this corresponds to the state not letting the local group determine its conduct the way that the group desires. Thus, from the individual’s perspective it is a question of freedoms and from the collective perspective it is an issue of federalism, local governance.

I’d like to think that the US does not have secessionist regions (like Scotland, the Basque country, Quebec, Catalonia, Chechnya, etc) because it has a legal system that produces enough freedom and welfare that individuals do not feel the desire to secede. This also suggests that the legal system should not be merely optimizing for welfare but for a combination of welfare and freedom (I am not forgetting equality; egalitarianism is a component of welfare). A note of optimism for the scholarly enterprise: Since we have no gauge of freedom, normative legal and economic scholarship is still scratching the surface. Read More

0

CJ Katzmann speaks at NYU Law on new statutory interpretation book

Dean Trevor Morrison and Chief Judge Robert Katzmann

Dean Trevor Morrison and Chief Judge Robert Katzmann at N.Y.U. Law School

Robert A. Katzmann, Chief Judge of the Second Circuit, visited New York University Law School last evening to speak on his new book Judging Statutes (Oxford University Press, 2014).

The book grew out of a Madison Lecture Katzmann delivered at the Law School on October 18, 2011. Adam Liptak, of the New York Times, heard the lecture and urged the Judge to expand it into a book.

The format for the well-attended event was an interview by Dean Trevor Morrison followed by questions from the audience. Dean Morrison asked a series of questions concerning statutory interpretation — questions ranging from the importance of presidential signing statements to discerning congressional intent of omnibus legislation covering a vast array of topics sans much, if any, legislative record.

Supreme Court Justice Sonia Sotomayor was among those attending the event at which the Chief Judge autographed books.

 Chief Judge Katzmann was also recently interviewed by Brian Lamb on C-SPAN.

→ On Tuesday September 23rd, the Chief Judge will speak at Georgetown Law School. Here is the schedule for that upcoming event:

4:30 – 5:00 p.m.
  Conversation


  • William M. Treanor, Dean, Georgetown University Law Center
  • Robert A. Katzmann, Chief Judge, U.S. Court of Appeals for the 2nd Circuit

5:00 – 5:30 p.m.
 Panel Discussion

  • M. Douglass Bellis, Senior Counsel, Office of the Legislative Counsel, U.S. House of Representatives
  • Adam Liptak, Supreme Court Correspondent, The New York Times
  • David Vladeck, Professor, Georgetown University Law Center

Remarks
: 

  • David S. Mao, Law Librarian of Congress

 See also Jeffrey Toobin, “Will Textualism Kill Obamacare?,” The New Yorker, Sept. 3, 2014.

4

Posner opinion on same-sex marriage cases — no law clerk drafts needed

Judge Richard Posner

Judge Richard Posner

He is a rara avis — he writes his own judicial opinions (nearly 3000).  Law clerks need not bother with drafts. He writes his own scholarly articles (over 300-plus of them) and erudite books (40-plus). Law clerks need not bother with writing them either.

In a world where judicial “plagiarism” is the accepted norm, Judge Richard Posner is his own man, his own author, and his own thinker. Make of him what you will, but you gotta admire the guy for his hard work, dedication, and integrity.

All of this was made manifest recently in two same-sex marriage cases (Baskin v. Bogan and Wolf v. Walker), which were argued before a panel of the Seventh Circuit on August 26, 2014. The oral arguments in the cases, especially Posner’s interactions with the counsel, have been the talk of the town. In them, Posner minced no words as he cut through the clichéd babble tendered in defense of the state laws therein challenged.

Yesterday, slightly more than a week after those arguments, Judge Posner wrote for the Court in a clear-headed and well-reasoned 40-page opinion.

No cutting and pasting here; no arguments weighed down by the pull of tedious string citations; and no ambiguity of argument. Not surprisingly, the likes of Holmes and Kafka were summoned to buttress the logic of his opinion, this with a dollop of Posner’s own cost-benefit analysis mixed in for persuasive measure. This is not to say, however, that the opinion lacks a good discussion of the relevant case law. Hardly. Rather, my point is that Posner’s work in these cases does not read like some group project or something out of a law school moot court exercise. No! It has style and sophistication.

Now think: could a fresh-out-of-law-school clerk do all that, and in such a short period of time? Probably not . . . unless his name was Richard Posner (on that score, see here).

Speaking of Judge Posner, next month we plan to post a series of pieces on the good Judge, including a post consisting of questions on 26 topics posed to him by 24 noted legal persona (professors, journalists, and judges), replete with his replies to all of them. Stay tuned.

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Knee Defender, Barro’s error, and Surprise Norms

Being a believer in Coase’s irrelevance “theorem” (see corresponding CALI lesson by me), I bring you a peeve springing from a podcast’s discussion of knee defender (a product that prevents the airline seat in front of you from reclining, which led to a recent fight on a plane, the plane’s diverted landing, and the arrest of the fighting passengers), which referenced a pundit’s (Barro‘s) quip that since nobody has offered to bribe him not to recline, little demand for no reclining exists. The podcast was also critical of reclining generally (as it is of warning motorists about speed traps), which raises the issue of hidden, surprise norms.

First on Coase. Bribing someone not to do something that annoys you is completely counterintuitive and counterproductive. It sounds and feels like extortion and perhaps we have an innate intuition against extortion. Maybe a jurisdiction existed, in the history of human development, where it was acceptable and habitual for some to pay others not to engage in annoying activities. However, nobody lives there any more because it got too annoying, since this functioned as an incentive for annoying behavior. How do we get from this point (my anti-extortion exception to acceptable Coasean bargaining) to worlds where ranchers bargain with farmers or quiescent spas with percussionists? I think social interaction follows the golden rule of do unto others as you would have done unto you (I accept gradual moderate reclining especially while napping and am very thankful indeed for speed trap warnings) and polite counterrequests not to recline are easy and possible (and we luckily have judges to protect us against oversensitive cops). Farmer-rancher and spa-percussionist interactions are different in that they happen at the professional level. Ranchers and farmers do not know eachother’s cost-benefit calculus making bargaining acceptable, as I think it is between neighbors with different attitudes about noise or lawn care. That having been said, my sense is that airline seat design seems to be sensitive to the various concerns because it seems to have shifted to minimal reclining in short flights or cramped rows and more reclining in transoceanic flights, where, also, the flight attendants do ask passengers to lift their seats for meals. So, anti-reclining demand seems to be producing results, consistent with Coasean reasoning and contrary to the intuition of Barro. Notice the unusual power of Coase here, since two of his conditions, the clarity of rights and enforceability of bargains, seem to be lacking in the social context of seat reclining (but not in neighborhood lawn care? Or is that why people pay a premium to live in associations? Coase all the way! Is it Lee Fennell or Jay Weiser who discuss premiums paid for association houses? Maybe both.). Perhaps I am wrong on reclining and it is clearly a right, not only because the button is on the handrest of the recliner (rather than the seat back, as the podcast points out) but also and especially since the airlines have banned knee-defender. The airlines also offer some seats with protection against reclining, the bulkhead and the exit row seats (maybe airlines could increase the number of non-reclined-against seats or charge the knee-defender premium for them). Thus, those seeking no reclining can obtain it by taking such seats instead of bribing Barro, buying knee defender, or trying to create a norm against it.

Second on surprise norms. No no no no, thou shalt not spring your righteous surprise norms on me. Western legal and social arrangement rests on the foundation that what is not prohibited is allowed. I can press my recline button and I can blink my brights to oncoming motorists at the cost of flying next to crying babies and driving behind those doing under the speed limit. (But in Sunday’s NY Times magazine, in Branson’s interview, he mentioned that he wants or tried to have his airline move toward children’s cabins, a development for which my ears are praying albeit from behind BOSE noise-cancelling headphones). To my reasoning, a necessary corollary of the rule of law is the non-rule of non-legal norms. When a need for a rule has enough thrust that it alters the law, then we have some warning about it and perhaps the chance to object against its creation. Holding people to a standard of conduct they do not know and to which they may object seems the height of (righteous, meddlesome, antiliberal, puritanical, strike four words) unfairness. (BTW, strike is obsolete litigator legalese for delete, dating from the days where the transcriber would back up the typewriter carriage and type XXXX or dashes over the, thus, struck text. That I could perfectly easily delete the words reveals my affectation here, but ignore that.) I have a sense that when I lived in the east coast a lot more of these surprise norms seemed to exist than here in the midwest and it grated. Or I am a rude boor who belongs in that extinct society above.

So, what is the norm in this blogo-podcast-sphere? Should I reveal that I am commenting on Oral Argument of Joe Miller and Christian Turner or should I leave the podcast nameless because I criticize it somewhat? Since law professors thrive on citation counts, I will presume that they would prefer attribution to marginalization despite that I am not in full agreement with everything they say (and who could possibly expect complete agreement in our milieu of professional debaters of trivialities?). I am very thankful for their podcast adding interest to my driving time and for triggering this post.

I hope no norm against run-on sentences and parentheticals exists in the blogosphere, or I am toast! In my defense, please notice that I could not instead drop notes. BTW, drop a [foot]note is legalese for removing from the main text a diversion or interjection and placing it in a footnote, which reminds me…