Mozart of Legal Writing: Clerks Reflect on Posner’s Career

By Patrick L. Gregory, Bloomberg BNA

The most enduring part of Judge Richard A. Posner’s legacy could be his writing style, his former clerks say.

Posner retired abruptly Sept. 2 from the U.S. Court of Appeals for the Seventh Circuit, where he served for more than 35 years after President Ronald Reagan nominated him in 1981. He served as chief judge from 1993 to 2000.

Clerking for Posner was “like being a music student who had the chance to work with Mozart,” former clerk Richard W. Porter told Bloomberg BNA by email.

“The sweeping breadth and depth of Judge Posner’s interest, inquiry and work is extraordinary, but his pragmatic, simple and approachable opinions are the lasting gift of his genius,” Porter, now a partner at Kirkland & Ellis LLP, Chicago, said.

Posner “pioneered the movement to apply economic principles to legal decisions,” former clerk Julia K. Schwartz, now an associate at Miller Shakman & Beem, Chicago, told Bloomberg BNA by email.

His subsequent decision to move away from a “more laissez-faire approach” to cases “really speaks to his open-mindedness,” former clerk Carolyn Shapiro, now a professor at Chicago-Kent College of Law, told Bloomberg BNA by telephone.

The Seventh Circuit announced Posner’s unexpected retirement on the evening of Friday, Sept. 1, effective the next day.

 

Law School Favorite

Posner is a senior lecturer at the University of Chicago Law School, where he’s been a part of the faculty since 1969.

His appeal goes far beyond the school that describes itself as the “birthplace of law and economics.”

“Students, lawyers, judges and, yes, ordinary Americans will read his opinions, and his influence will radiate for generations to come,” Porter said.

Posner’s “crisp, eloquent opinions are read in nearly every law school class,” Schwartz said.

That’s partly because they’re “fun, creative, and well-written,” Schwartz said.

 

Jargon-Free Writing

“Judge Posner made law more accessible,” former clerk Richard Husseini, now a partner at Baker Botts, Houston, told Bloomberg BNA by email.

His decisions are “clear, succinct,” and “to the point,” he said.

They’re free of both “legal jargon” and footnotes, Husseini said.

“In any opinion he authored, he wanted to convey in the opinion the basis for his analysis to help provide clarity in the law going forward,” he said.

 

Gardening as Art

Posner demonstrated his “playful approach” to cases and “his broad range of interests” in a dispute over an ordinance governing the height of weeds, Disc. Inn, Inc. v. City of Chicago, Schwartz said.

Though it wasn’t “strictly necessary to the outcome,” Posner “took the opportunity to discuss whether gardening is a form of expressive activity protected by the First Amendment,” she said.

“His decision includes photographs of plants in and around Chicago and references to the gardens at Giverny and the artwork of Marcel Duchamp,” she said.

 

‘Incredible Output’

Posner was “proud of the fact that he wrote all of his opinions himself,” Shapiro said.

“You can’t really talk about Judge Posner without talking about his incredible output,” Shapiro said.

Posner wrote more than 3,300 of them, the judge said in his statement announcing his retirement.

But he also “wrote book after book” and “article after article,” Shapiro said.

It was “sort of nonstop,” she said.

 

Economics, Evolution

Though he wrote all of his own opinions, Posner was “really open to hearing” the thoughts of others, Shapiro said.

“Despite being a genius, he is fully aware that he has limited knowledge of the world and may be mistaken in his views,” former clerk Edward Morrison, now a professor at Columbia Law School, New York, told Bloomberg BNA by email.

Posner showed his open-mindedness in his book, “A Failure of Capitalism,” Shapiro said.

He initially took a laissez-faire approach to cases, as “one of the real founders of the law and economics movement,” she said.

But the 2008 financial crisis changed Posner’s thinking, she said.

Posner wrote that the crisis occurred “because we didn’t have adequate regulation” of markets, Shapiro said.

 

Pragmatism

Posner “instilled a common-sense, pragmatic approach to legal decision making,” Husseini said.

“He considered the practicalities and urged consideration of consequences in making any legal decision,” Husseini said.

The judge didn’t favor “grand doctrines or multi-factor tests,” he said.

Instead, he “adopted a flexible style most suited for the case at hand and that best exemplified the vessel through which to explain the legal answer,” he said.

“His opinions take on the fundamental questions not only of what the legal answer is but why it should be the legal answer,” Husseini said.

The judge’s “jurisprudence never takes the law for granted,” Morrison said.

“It constantly probes, questions, and (sometimes) kills longstanding doctrines in an effort to have a legal system that solves real-world problems,” he said.

 

Vindication in Reversal

Posner “isn’t afraid to be wrong” and “thrills in taking a position in order to push the law forward,” Morrison said.

Khan v. State Oil Co. is perhaps an example.

In that decision, Posner took aim at high court precedent, Shapiro said.

He wrote that it “was wrong and needed to be updated” in light of developments in antitrust law,” Shapiro said.

The “whole opinion is like a cert petition for the defendant,” who later won a 9-0 decision from the high court in State Oil Co. v. Khan, Shapiro said.

A case book noted that he “might be the only judge who’s ever been vindicated by being reversed 9-0,” Shapiro said.

 

Cat Calendar

“During our weekly (and sometimes more frequent) lunches, we would talk about everything from politics to religion to archaeology to movies,” and also about his cat, Pixie, Schwartz said.

The judge is “fiercely devoted to Pixie,” Schwartz said.

“While I was clerking, he gave me a calendar that depicts a different Pixie photo for each month of the year,” which “still hangs on the wall in my office,” she said.

In the December photo, “Pixie stands between two wooden Nutcracker dolls,” she said.

 

‘Just The Facts’

The judge exemplifies the catch-phrase “just the facts,” Morrison said.

He’s “fascinated by the facts because the law comes alive in the facts,” he said.

“Too much of the law is an arid collection of abstract principles, and too often scholars and judges are comfortable repeating those principles,” he said.

But for Posner, “the facts are proving grounds for abstract principles,” Morrison said.

“As a clerk, I remember working on a defamation case in which the concept of ‘reckless indifference’ was in play.”

Morrison “suggested that he cite a few famous cases that use that phrase.”

Posner “sent me a pointed email, challenging me to define what, exactly, amounts to reckless indifference,” Morrison said.

Instead of a philosophical discussion, the judge wanted “me to dissect the facts of recent cases and extract empirical patterns that characterize situations in which courts find reckless indifference,” he said.

“For Judge Posner, the facts are everything,” the professor said.

 

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