Thursday, August 2, 2012


In a detailed discussion of the Seventh Circuit's opinion in Flava Works, Inc. v. Gunter, blogger Eric Goldman rips into Judge Posner and the Seventh Circuit:
Judge Posner drafted this opinion, which means that (as usual for him) it reads like a barely edited first-draft. As usual for Seventh Circuit opinions, it makes a number of questionable and undefended offline analogies, makes assumptions about factual questions that could/should be remanded to the district court, barely engages with or cites to other legal precedent, raises and addresses issues that the litigants never raised, and is filled with gratuitous digressions (e.g., an uncomfortable discussion that gay ethnic pornography might be illegal, a contention neither party advanced; and an odd discussion about the reputational capital benefits of sharing content). If I were Flava Works, I would be hopping mad about the manifest procedural defects in the opinion (and motivated to seek en banc review). As a result of the opinion’s characteristic affectations, parsing this opinion is needlessly difficult, so I can only do so much to deconstruct the legal principles in it.
For some more of Judge Posner's "characteristic affectations," see my post from earlier today about another opinion Judge Posner authored.

In fact, as long as I'm talking about that opinion, I was struck by Posner's assertion in that case that the court's willingness to interpret the limits of Illinois law depends on whether the case got to federal court because Plaintiff filed it there or because the defendant removed it there:
The plaintiffs are asking us to innovate boldly in the name of the Illinois courts, and such a request is better addressed to those courts than to a federal court. If the plaintiffs had filed this case in an Illinois state court and it had been removed to the federal district court, they would have had no choice, and then we would have been duty-bound to be as innovative as we thought it plausible to suppose the Illinois courts would be. But the plaintiffs filed this suit in the district court originally — they chose the federal forum.
Judge Posner cites a couple cases to support this idea that the Seventh Circuit is not "duty bound" to figure out what Illinois law requires when the Plaintiff chooses federal court as the forum, so maybe it's a well established principle. But that doesn't make it any less strange.

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