Legal News

The Inimitable Judge Posner Strikes Again

By Peter Lattman

Richard Posner has been a colleague and a friend for over a quarter century. Over the years, I have learned that there is one thing he isn’t: sentimental. A celebration of his years on the bench inevitably invites not only sentimentality but also a lot of applause, and we should certainly pause for some. (A terrible secret: those of us who know Posner well like him. Actually, we like him a lot.)

The above is from an essay by Cass Sunstein from the just-published special issue of the University of Chicago Law Review, “Commemorating Twenty-five Years of Judge Richard A. Posner.” Alas, here at the Law Blogk, we can call Richard Posner neither a colleague nor a friend. We can only call him Judge Posner.

Tim Wu, his former law clerk who put together Project Posner, a Web site devoted exclusively to Posner’s opinions, calls him “probably America’s greatest living jurist.” From an opinion yesterday on a reinsurance contract, courtesy of How Appealing. Every contract professor should save this for their students.:

One who voluntarily confers a benefit on another, which is to say in the absence of a contractual obligation to do so, ordinarily has no legal claim to be compensated. If while you are sitting on your porch sipping Margaritas a trio of itinerant musicians serenades you with mandolin, lute, and hautboy, you have no obligation, in the absence of a contract, to pay them for their performance no matter how much you enjoyed it; and likewise if they were gardeners whom you had hired and on a break from their gardening they took up their musical instruments to serenade you.

He also ends with this totally awesome kicker that every legal writing professor should hand out to their students:

A note, finally, on advocacy in this court. The lawyers’ oral arguments were excellent. But their briefs, although well written and professionally competent, were difficult for us judges to understand because of the density of the reinsurance jargon in them. There is nothing wrong with a specialized vocabulary—for use by specialists. Federal district and circuit judges, however, with the partial exception of the judges of the court of appeals for the Federal Circuit (which is semi-specialized), are generalists. We hear very few cases involving reinsurance, and cannot possibly achieve expertise in reinsurance practices except by the happenstance of having practiced in that area before becoming a judge, as none of us has. Lawyers should understand the judges’ limited knowledge of specialized fields and choose their vocabulary accordingly. Every esoteric term used by the reinsurance industry has a counterpart in ordinary English, as we hope this opinion has demonstrated. The able lawyers who briefed and argued this case could have saved us some work and presented their positions more effectively had they done the translations from reinsurancese into everyday English themselves.

Full post as published by Law Blog - WSJ.com on January 17, 2008 (boomark / email).