Posner Self-Immolation Watch #2

by Ed Whelan

1. Law professor Stephen Bainbridge’s succinct assessment:

Posner’s losing it. sad.

2. On the other hand, an e-mail from a lawyer who served as a Seventh Circuit law clerk many years ago suggests that Richard Posner’s loss may not be so recent:

As a judge, he seemed totally unconcerned with the details and the record, and at times, his opinions, though entertaining, bordered on the absurd. When I clerked, his style was very free-wheeling and unpredictable. He seemed to view precedent as marginally relevant. It was as if he went to his chambers after oral argument and banged out opinions in a stream of consciousness manner. His law clerks told me that they would try to fix his screw-ups when they found contrary precedent. It did not always work. For a guy with his obvious intellect, this was very surprising.  

3. Given all of Posner’s smears and other sloppy errors, I initially passed over his extraordinary insinuation, in his reply to Bryan Garner, that Garner was lying in stating that he “had four lawyer‘colleagues at LawProse—with 55 years of professional experience among them—verify the accuracy of every statement made about every case in the book.” But this blog post by Bart Torvik caused me to reconsider.

Let me first quote in full what Posner had to say on this point:

I have trouble believing Garner when he says that four lawyers at his company verified the accuracy of every statement made about every case in the book. The book’s Acknowledgements page thanks 96 (!) persons for helping with the book, and there is no reference to four lawyer-colleagues who slaved to make sure that every statement was accurate. The book is riddled with inaccuracies, illustrating the adage that too many cooks spoil the broth. The Acknowledgments thank nine “Garner Law Scholars” at a Texas law school who “briefed dozens of cases for our [the authors’] consideration.” I am guessing the Garner Law Scholars were the source of many of the mistakes.

So Posner “ha[s] trouble believing Garner” on this point! What might justify Posner’s suggestion that Garner is lying? It’s odd enough that Posner would base such a suggestion on inferences drawn from the book’s Acknowledgments. But it’s even worse that, contrary to what Posner says (and as Torvik points out), the Acknowledgments include this statement:

At LawProse, Inc. in Dallas, we had the benefit not only of a fine law library but also of several accomplished legal researchers: Tiger Jackson, Jeff Newman, Becky R. McDaniel, Heather C. Haines, Timothy D. Martin, and Eliot Turner.

I have inquired of Garner, who tells me that the “four lawyer-colleagues” he referred to are the first three individuals in that list (all of whom have worked on Black’s Law Dictionary) and Karolyne H.C. Garner, who, in addition to being his wife, is a contributing editor for Black’s Law Dictionary and who is named in the Acknowledgments among those “who commented critically and copiously on the manuscript.”

Notwithstanding his pretension of thoroughness, Posner somehow seems to have missed Garner’s listing of his LawProse colleagues. (As Torvik points out, he has also miscounted the number of persons thanked in the Acknowledgments.) And, having generated a review that, as I have shown, is rife with errors, he baselessly asserts that Scalia and Garner’s book “is riddled with inaccuracies”—and freely casts aspersions on some law-school students who merely “briefed” cases for Scalia and Garner’s “consideration.”

Unbelievable—but on par with Posner’s entire performance on this matter.

Bench Memos

NRO’s home for judicial news and analysis.