The end of an era

Patrick Berry, The Levison Group

Judge Richard A. Posner abruptly, unceremoniously and unexpectedly announced his retirement from the Seventh U.S. Circuit Court of Appeals on the sleepy Friday afternoon before Labor Day Weekend, and announced his retirement would be effective the very next day. It is not hyperbolic to say the announcement sent shockwaves through the legal community. It was all my legal buddies were talking about over the holiday weekend. While most of America was lamenting the end of summer and looking ahead to the start of the NFL football season, we were waxing nostalgic about Posner’s departure and his legacy. (Yes, I admit that doesn’t make me sound very cool.)

A former valedictorian of Harvard Law School, Judge Posner has been one the most well-known and well-regarded federal jurists in the country. He was nominated for the bench by Ronald Reagan in 1981. He served as Chief Judge from 1993 to 2000. In his time, he authored over 3,300 opinions and churned out books at a breakneck pace (he has published over 50 books and counting). He is known for his incredible wit, distinct and engaging writing style, unmatched work ethic, and his imposing presence on the bench during oral arguments. Several colleagues and friends who have argued in front of him have told me that there is no more intimidating or exhilarating experience they’ve encountered in their careers.

Judge Posner is also credited with being the leading scholar in the field of “economics of law” (or “law and economics”), a line of judicial reasoning that applies economic theory and method to the law. I first encountered Posner during law school. I had professors and mentors who were disciples of the Chicago school of economics, and it became their mission to spread his philosophies far and wide. Particularly early in his career, Posner espoused and applied the idea of “net benefit” as the guiding principal for deciding legal disputes. Applying this rigid doctrine didn’t always endear him to everyone (including myself). He often exhibited a belief that the meaning of the text of the Constitution is properly interpreted in light of present circumstances, and took the same approach when evaluating precedents set by prior cases. His role as judge, he said, was to observe the “social consequences” of a dispute and reach a decision based on those consequences. Some might call that “judicial activism.”

These ideas and principles probably are what kept him off the U.S. Supreme Court. Despite his legal brilliance and résumé, his judicial philosophies simply would have made him too polarizing, and I doubt either party would have gone to bat for him. That said, Posner was often referred to as the “Tenth Justice” on the Supreme Court, which he must have found ironic. He has said that he thinks the “Supreme Court is awful” and that only a couple of Justices– Ginsburg and Breyer – are qualified (even those two, however, are just “OK, they’re not great,” according to Posner.) Had he ever been appointed, he might have had to sit by himself in the famous – or infamous – Supreme Court cafeteria.

Reflecting on Posner’s sudden retirement – and reading various editorials and articles lauding his accomplishments and reflecting on his distinguished career – got me thinking about my own legal career and the legacy I’d like to leave. I’m a long way off from retirement, but, in the words of one of my legal mentors, “It’s never too early to start thinking about what you will leave behind.” Posner’s left a lot behind, including, as it turns out, plenty of advice and musings that provide guidance and direction for younger attorneys like myself striving to make a mark. Here are a few of my favorites:

First, “Modern judicial opinions tend to be too long, and we shall try to be brief. We shall even forgo the usual prefatory statement of facts, which would disclose an utterly routine, though very large, illegal drug operation.” U.S. v. Herrera-Medina (1988). Posner, like many of my legal writing professors in law school, advocated for a succinct, to-the-point writing style. As F.D.R. once said, “Be sincere, Be brief, Be seated.” I have benefited immensely from this and similar advice, and I’ve found that both clients and senior partners appreciate a succinct, focused work product. Another tip: If you’re going to run a “very large, illegal drug operation,” don’t do it in the Seventh Circuit.

Second, “The filing of an appeal should never be a conditioned reflex. ‘About half the practice of a decent lawyer consists in telling would-be clients that they are damned fools and should stop.’” Hill v. Norfolk & Western Railway Co. (1987). Another crucial element of the practice of law, something that they don’t teach you in law school, is client management. A lawyer who fails to properly manage client expectations – about a case, a decision or a negotiation outcome – is setting him or herself up for failure. However, unless you’ve attained life tenure as a federal judge, I wouldn’t recommend calling the client a damned fool in the process (at least if you don’t want to be on the end of a lawsuit yourself).

Third, in a nod to all the stressed out Law Review staff members, judicial clerks and junior litigation associates, it turns out Posner shares your never-ending disdain for the Bluebook citation system: “The first thing to do is burn all copies of the Bluebook, in its latest edition 560 pages of rubbish, a terrible time waster for law clerks employed by judges who insist, as many do, that the citations in their opinions conform to the Bluebook.” At other times, he’s gone further: “While the pyramids were excessive relative to the pharaohs’ actual needs, they at least have tremendous esthetic value. By contrast, I doubt that tourists will ever flock to see copies of the Bluebook. Indeed, rare is the person who ever opens up the Bluebook when he doesn’t absolutely have to.” I don’t know if there is a lesson here per se, but maybe his remarks will provide some small comfort to the overly-caffeinated, under-appreciated second-year law student burning the midnight oil trying, for a fifth time, to find the rule for citations to a footnote in an 18th Century English opinion. Posner shares your pain.

No matter what you thought of Posner’s judicial philosophy or political leanings – I certainly didn’t agree with many of his decisions – it’s undeniable that the Seventh Circuit (and the federal judiciary) has lost a true icon. Judge Posner has left behind the kind of legacy that we should all strive for, and his service was a net benefit to all of us.

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