Judge Posner's argument against polygamy also works against same-sex marriage

Polygamy has been a hot topic in the aftermath of the Supreme Court's finding a constitutional right to same-sex marriage. Indeed, Chief Justice Roberts argued in his dissent that most of Justice Kennedy's arguments apply just as strongly in favor of a right to plural marriage:

It is striking how much of the majority’s reasoning would apply with equal force to the claim of a fundamental right to plural marriage. If “[t]here is dignity in the bond between two men or two women who seek to marry and in their autonomy to make such profound choices,” why would there be any less dignity in the bond between three people who, in exercising their autonomy, seek to make the profound choice to marry? If a same-sex couple has the constitutional right to marry because their children would otherwise “suffer the stigma of knowing their families are somehow lesser,” why wouldn’t the same reasoning apply to a family of three or more persons raising children? If not having the opportunity to marry “serves to disrespect and subordinate” gay and lesbian couples, why wouldn’t the same “imposition of this disability” serve to disrespect and subordinate people who find fulfillment in polyamorous relationships? 

(citations removed for clarity)

And the argument for a right to plural marriage isn't just a gotcha advanced by bitter conservatives. Leftist blogger Freddie deBoer and left-libertarian blogger Will Wilkinson both jumped on the bandwagon, arguing that there should be a right to plural marriage.

In typically idiosyncratic fashion, Judge Posner has come up with an argument that he thinks dispatches this plural marriage stuff:

[T]he chief justice ... suggests that if gay marriage is allowed, so must be polygamy. He ignores the fact that polygamy imposes real costs, by reducing the number of marriageable women. Suppose a society contains 100 men and 100 women, but the five wealthiest men have a total of 50 wives. That leaves 95 men to compete for only 50 marriageable women.

Posner's argument is that a policy that would create an excess of unmarried men imposes a real cost on society, and therefore is certainly not required. In other words, this is at least a rational basis for a ban on plural marriage.

I see a number of problems with this argument. From a legal perspective, it is essentially frivolous because it has nothing to do with the reasoning of Justice Kennedy's opinion, which is based on liberty and equality, not economics or utilitarianism.

But, more subtly, it could just as easily be used to construct a rational basis for a ban on same-sex marriage, at least if it's plausible that there would be more homosexual women than homosexual men. Consider Posner's society of 100 men and 100 women, but where 6% of the men and 10% of the women are gay. If same-sex marriage is allowed, the 6 gay men and the 10 gay women pair up. That leaves 94 straight men fighting over 90 "marriageable" straight women. We've got four extra, lonely men. This counts as a "real cost" in Judge Posner's world.

And, to the best of my understanding, it is in fact true that women are more likely to identify as LGBT:

The gap is even bigger if you just look at younger people, who have grown up in a society much more tolerant to homosexuality and thus might reasonably be expected to be more honest about, or even aware of, their sexual orientation:

If you do the math, you can construct an argument that permitting same-sex marriage could leave millions of American men with no potential spouse:

1) According to the 2010 census, there were approximately 41.6 million men and 41.3 million women between the ages of 20 and 39. (So you'll notice that we start with a problem.)

2) Using the more extreme figure of 8.3 percent LGBT females and 4.6 percent LGBT males, we are left with 37,872,000 million "marriageable" straight women for 39,686,000 straight men to fight over. That's 1,814,000 extra, "unmarriable" men -- over 4 percent of the prime-age male population!***

Thus, based on Judge Posner's reasoning, we have found the "real costs" of same-sex marriage, and constructed a rational basis to require that marriage remain a one-man, one-woman institution.

Just to be crystal clear, I don't actually think this hocus pocus is a good argument against same-sex marriage. But all the reasons that make it a bad argument against same-sex marriage make it an equally bad argument against plural marriage.

***Totally weird coincidence: there are about 2,000,000 American men in prison right now.

Judge Posner is Cat Crazy

It is by now well known that Judge Richard Posner is a cat person. It is perhaps somewhat less well known that his love of cats has infected his judicial decision making to an alarming degree.

For example, take Judge Posner's opinion in yesterday's en banc opinion, Markadonatos v. Village of Woodbridge. The case is about whether a town's $30 booking fee imposed on all people arrested—whether innocent or not, whether based on probable cause or not—is a violation of their civil rights.

In typical Posner fashion, he would have decided the case by making up his own interpretation of the ordinance to avoid the constitutional issue, even though no one—not the village police department who actually imposed the fee, not the village lawyers, not the plaintiff, not the district court judge, not one of the three judges who each wrote an opinion for the original panel, etc.—had ever previously raised this interpretation as a possibility, much less argued that it was correct. Even on the full Seventh Circuit court, only two of the other nine judges thought Judge Posner's interpretation was permissible after he thought it up. (The decision in the case is a weird one: there are four different opinions, and none of them carry a majority of votes, so the district court's judgment is affirmed by default.)

Anyhow, one explanation for what was going on with Judge Posner's opinion is that he just couldn't stop thinking about his beloved cat. Basically every legal issue that Posner considers somehow turns into a discussion of cats.

First, we learn of Judge Posner's greatest fear—catnapping. Not a short nap like a cat takes, no, no. Something much more sinister:

The plaintiff’s counsel tells us that the $30 “booking fee” provision is unique among the provisions of the ordinance because it alone imposes a fee for what may be innocent conduct mistakenly believed by police to be illegal. He instances the $15 fee for “release of [an] impounded dog or cat.” But of course a dog or cat may escape the owner’s control, and later be impounded, without fault on the owner’s part. The animal may have been stolen, or have escaped from its home because a careless workman had left a door or window ajar, or been lured from its litter box by a rogue Woodridge police officer with catnip.

I myself have wondered about all those extra compartments on the police officer's standard belt. But it never occurred to me that one of them might be filled with catnip.

Second, we consider the things that Judge Posner's cat likes to jump on:

It’s like interpreting the phrase “my cat enjoys jumping on trampolines and beds” to mean that she enjoys jumping on both things, as opposed to her enjoying jumping only on trampolines and, separately, enjoys beds for reasons unrelated to jumping on them.

So now I imagine this scenario: Judge Posner's cat jumping on a trampoline while he lounges admiringly on his bed, and we soon find out that his cat does indeed enjoy the bed for reasons unrelated to jumping.

Lawyering against destiny

When I was spending a few months over at the Minneapolis City Attorney's office, the big issue in misdemeanor criminal defense was "source code" challenges to the Breathalyzer test in DUI cases. The criminal defense bar was arguing that it needed access to the machine's "source code" so that the results could be attacked with a scientific expert witness. In my view, this was a red herring—what mattered was whether the machine worked, something that could be verified with experiments, and it made no difference what assortment of ones and zeroes lived in its guts. (My understanding of "source code" remains murky.)

Anyhow, the state would have gladly turned over the source code if it had it, but of course it did not. The source code was owned by the maker of the Breathalyzer machines, and that company considered it a trade secret. So it was a perfect issue for the DUI attorneys: they could demand the source code, and when it was not forthcoming, move to exclude the evidence of the breath test as a sanction for failing to produce it.

The issue was raised in one my cases, a case that just so happened to be assigned the judge considered to be very pro-defense: Judge Jack Nordby. From the moment of the judge assignment, I knew my chances of success on the source code motion were slim-to-none. But Judge Nordby set a briefing schedule, and I intended to do my best.

Just a few days later, however—well before my brief was even due—the order came down: motion to suppress granted. I suspected that this was a sort of mistake; that Judge Nordby had issued the same order in the dozens of cases where the source code issue had been raised, and his clerk just threw my case in with the rest of them. But I couldn't presume that the judge had made a mistake like this. So I filed an emergency motion to reconsider, asking for at least a chance to be heard. This led to one of the weirder moments in my legal career: the phone rang, and Judge Nordby was on the line. He was calling to apologize: of course he would vacate the order and allow the briefing to go forward.

Which was nice. But, still, I knew I was going to lose. I'd already seen the order! Nonetheless, I wrote a pretty awesome brief. The one good thing about having seen the order in advance was that I could attack Judge Nordby's reasoning directly—I didn't have to guess at which arguments the judge would find most persuasive. And it turned out that Judge Nordby's order was more or less contradicted by his own treatise on criminal procedure. So I was pretty proud of my little brief.

But, still, I knew I was going to lose.

When the hearing came and Judge Norbdy handed down his ruling, he was very kind, complimented the brief, and said that he had seriously reconsidered his decision. But. He was not changing his ruling.

Which brings me to the Seventh Circuit fiasco known as Motorola Mobility v. AU Optronics, a Richard Posner production.  The story is set forth here, and I urge you to follow the link because it is pretty much unbelievable.

In short: there was a district court order, and it was appealed on an interlocutory basis—this means that the order wasn't "final" and wouldn't usually be appealable, but Motorola argued that it should be appealed right away. That request for interlocutory appeal was heard by a "motions panel" of the Seventh Circuit, which granted the motion to allow the appeal. At the same time, however, the motions panel (in an opinion by Judge Posner) decided the case on the merits, and affirmed the district court's order without allowing any briefing or arguments by anyone on this merits.

This was extraordinary, perhaps unique, and ruffled a lot of feathers. Among the feathers ruffled were those of the eagle in Great Seal of the United States, because the issue decided concerned anti-trust law that affects international business and international relations (somehow—I don't pretend to understand exactly how). So when Motorola filed a petition for rehearing in front of all the Seventh Circuit judges, the U.S. Department of Justice filed an amicus brief stating its view that the decision was wrong.

This led to the second round of nuttiness: Judge Posner issued an order, out of the blue, to the Departments of Commerce and State, asking them to submit their own briefs—even though the Department of Justice is ultimately the legal representative of both agencies. The Solicitor General wrote the court to inform it that the previous brief had been submitted on behalf of the United States, and that no agency-specific briefs would be forthcoming. Judge Posner responded with another singular order, ordering the Solicitor General, personally, to name the specific federal officers who had been consulted in preparing the brief, and the nature of the consultation. He was given a week to do so.

Then the panel withdrew that bizarre order the next day. Still, the appeal of the appeal went on. Until now. Today, the motions panel changed its mind, and set a briefing schedule on the merits. So it's like none of that stuff ever happened.

But, still, Motorola knows it is going to lose, right?

They've seen the order. So they are going to spend countless hours preparing briefs, spending god knows how much in legal fees, so that Judge Posner can just issue the same order in six months. What's the point? Just this, I guess: there's some lawyering to be done.

UPDATE:

After some extensive lawyering, Judge Posner—surprise!—affirmed the district court's partial summary judgment (again).

Posner on Decriminalization

Judge Posner has a lengthy essay / book review in the New Republic, discussing the topic of crime and punishment and the fact that too many Americans are in prison. It is worth a read.

Like me, Judge Posner thinks there should be fewer crimes. Decriminalization of marijuana and other drugs is the low-hanging fruit, but Posner does not stop there:

There are also other candidates for decriminalization, such as prostitution and copyright infringement (which should be just a civil offense); and it is time that the age of consent were reduced to 16 or even 15, in recognition of contemporary sexual mores. Gambling should be decriminalized, and probably environmental offenses as well, such as killing a migratory bird; such offenses should be left to the civil law, with its financial sanctions.

I'm with him on prostitution, of course, but some of his other ideas strike me as a little strange—or at least trivial. How many people are wasting away in prison on a copyright rap? And would changing the age of consent from 16 to 15 make any difference whatsoever to prison populations?

I'm all for legalizing all forms of gambling, but again I wonder how many people actually go to jail on gambling offenses. When I was a law clerk, Judge Rosenbaum did preside over a money-laundering trial that came out of an FBI take down of a St. Paul bookie operation, so it's not fanciful. But the defendant who was convicted (one was acquitted) was sentenced to probation. My understanding is that most money laundering and gambling prosecutions are efforts to go after the more public manifestations of organized crime. So I guess if you made gambling legal it might have the side-benefit of making organized crime less profitable.

I guess I'd be okay with decriminalizing migratory bird murder, too, but it would be pretty far down the list as well.

What do you think, Mr. Gillette? Should the Man get out of the copyright-enforcement racket? Any other crimes you'd like to see taken off the books?

"I answer yes, though I’m a cat person and consider his dog hideous."

Says Judge Posner, expounding on his prodigious ability to tell spontaneous lies.

Refreshingly on point or highly tendentious?

Reader Astrophel brings to my attention an essay entitled, "The real reason law schools are raking in cash," by Benjamin Winterhalter for Salon.com.

Spoiler alert: the reason is capitalism. Well, that and Richard Posner.

I may respond to the essay here soon, but for now I invite Astrophel to share his thoughts in the comments. He takes the "refreshingly on point" side of the titular dichotomy. I take the other.

Judge Posner is unstoppable. He cannot be stopped.

I was thinking this morning about Samuel B. Kent, a former judge for the United States District Court for the Southern District of Texas. He was famous for writing opinions and orders that took lawyers to task over the way they handled cases before him. For example, see this opinion which speculates that the submissions the judge received were done in crayon as a way of saying the lawyers on the case were stupid.

Posner on Privacy

Judge Posner has been making some waves recently after he published an op-ed on his skeptical view of privacy. In Posner's view, "there is a tendency to exaggerate the social value of privacy":

I value my privacy as much as the next person, but there is a difference between what is valuable to an individual and what is valuable to society. Thirty-five years ago, when I was a law professor rather than a judge, I published an article called “The Right of Privacy,” in which I pointed out that “privacy” is really just a euphemism for concealment, for hiding specific things about ourselves from others.

We conceal aspects of our person, our conduct and our history that, if known, would make it more difficult for us to achieve our personal goals. We don’t want our arrest record to be made public; our medical history to be made public; our peccadilloes to be made public; and so on. We want to present sanitized versions of ourselves to the world. We market ourselves the way sellers of consumer products market their wares — highlighting the good, hiding the bad.

To understand Posner on privacy,you need to know only one fact: Judge Posner has made public (by publishing!) literally every thought that has ever crossed his mind. (Here is his 170-page CV.)

He has published most of his thoughts many times. His views on privacy are a good example. As he points out, he first started making this argument about how privacy is just a euphemism for concealment 35 years ago! And if you just do a Google search, you'll find a transcript of a Big Think interview from 2007 where he says, well, pretty much the same stuff word-for-word:

No. I value my privacy as much as anyone.  But I think as a social good, a social aspect, I think privacy is greatly overrated because privacy basically means concealment.  People conceal things in order to fool other people about them.  They want to appear healthier than they are, smarter, more honest and so forth.  I mean I’m exaggerating some, but I think it’s very much a double-edged sword, from a social standpoint.  That’s number one.

Another example: Not too long ago Mr. Gillette posted about a recent Posner opinion on the wisdom of imprisoning old people, and it reminded me of a case I read in law school. When I went to look it up, sure enough there was Posner, 25 years ago, writing essentially the same opinion.

Point is, Posner is not normal. He has chosen a ridiculously public life. His views on privacy are about as relevant to me as Mr. Spock's. And Mr. Spock doesn't even exist.

Worlds Colliding All Over My Face

As Reader(s)™ may have noticed, Mr. Gillette and I disagree about many things. But one thing we have in common, apparently, is non-appreciation of Slate legal affairs reporter Dahlia Lithwick. Unfortunately for us, Ms. Lithwick has been given a prize by her peers for the quality of her Supreme Court reporting. Upon learning of this, I honestly thought for a moment that the prize was one of those anti-prizes (like a Golden Raspberry). No such luck.

My general beef with Ms. Lithwick is her cycnical, personality-focused coverage of the Supreme Court. The implicit premise of every dispatch she files is that the Supreme Court justices make their decisions based on ideology at best and temper tantrums at worst. It's rather unbearable.

So, for instance, you'll see her complaining that: 

Whether it’s through forced arbitration, limited class certification, shifting burdens of proof or other subtle tricks, the Court has gone beyond locking out litigants and well into the realm of aiding and abetting powerful corporate interests.

But I've noticed a conspicuous silence when "powerful corporate interests" somehow lose at the Supreme Court. For example, see my report on Pacific v. Valldolid (2012):

[T]he losing party in this case was Big Oil, which (along with all other big businesses) the Supreme Court supposedly kowtows to. [And] the majority opinion, written by Justice Thomas, uses textual analysis to reach a result that favors the little guy—in this case a manual laborer whose job was known in the trade as a "roustabout." 

Well, you may say, sometimes Justice Kennedy gets swung, but the Thomas-Scalia axis always be comin' down on my boys! Yet it was Justice Thomas who came to the defense of Mr Valladolid, the lowly roustabout. And then when no one's looking the Court goes 8-1 in favor of "big business" with, ahem, Justice Scalia in stirring dissent:

In Justice Kagen's first published opinion, the pro-business Roberts Court predictably sided with the creditor—a big, bad credit card company—by interpreting the Bankruptcy Code to more or less incorporate an IRS regulation that makes clear that taxpayers may not take a deduction for ownership costs unless they have car payments to make. 

Only one Justice had the courage to stand up and dissent on behalf of the poor debtor:  Justice Scalia.  He interpreted "applicable" so that simply owning a car would qualify the debtor to deduct the specified amount from his or her disposable income.  To the charge that his interpretation rendered the word "applicable" superfluous, Scalia responded, "The canon against superfluity is not a canon against verbosity."

These are just two cases I've happened to notice and blog about. I don't believe I've ever seen Ms. Lithwick so much as acknowledge any of these counter-narratives. Why not, I wonder? The answer is obvious: she's an ideologue, not a reporter.

But the plot thickens. Not only has Ms. Lithwick's ideological reporting become the subject of fawning praise and prizes, despite my our lonely efforts to undermine her, but the Roberts Court's supposed pro-business slant is back in the news because an article co-authored by Blog-favorite Richard Posner and published in none other than the Minnesota Law Review (my baby!) purports to prove it for all time. Adam Liptak has the story in the New York Times.

I remain unconvinced. Once again, the main cases trotted out to establish the Roberts Court's pro-business bona fides are cases involving class actions and arbitration. I've read many articles on this topic, but none (other than my own, of course) notes that pro-arbitration and anti-class-action policies are clear favorites of federal statutory law:

Mandatory arbitration, for example, is governed by a federal statute. Congress passed that statute, of course. Similarly, the main recent innovation in class action practice is another federal statute, the Class Action Fairness Act of 2005. Conservative judges surely take opportunities to interpret these federal statutes in conservative ways, just as liberal judges do the opposite. But in both these examples the real problem is that political conservatives have succeeded in passing laws that enshrine policies that conservatives favor. That's democracy, in all its gory, and it is certainly not the role of judges—who (as we can all agree, apparently) are not good at resolving policy issues—to undermine those policies.

So we have a pro-business Supreme Court, sure, but only to the extent that we have pro-business laws because we are a pro-business country full of pro-business people. I think I speak for the clear majority of Americans when I say to you anti-business people: Deal with it, commies.

Judge Posner Ruins Weekends

Not long ago, Mr. Gillette noted that some lawyers like to drop Friday afternoon bombs on their adversaries—apparently just to ruin their weekends. (Although an alternative explanation is that the lawyers are just trying to save their own weekends.)

Longer ago, I blogged about a patent infringement case that started out in the Western District of Wisconsin. The initial "newsworthiness" of the case was that a tiny Milwaukee bakery was included as a defendant among several other multi-national corporations. (**SEE below for update on that front.) But the plot eventually thickened when the case was reassigned for pre-trial and trial here in Chicago in front of Seventh Circuit Judge Richard A. Posner. (Judge Posner likes to keep busy, obviously.)

At that time I noted that Judge Posner's case management order contained a rather unorthodox provision: all motions were to be filed by the close of business on Friday, and responses were due by the end of the day on the next Monday. This is built-in weekend ruination. Someone asked in the comments whether that was standard practice in the Northern District of Illinois, but I never answered. Rest assured, it is not.

I decided to check up on the case. Right now it is mired in patent-litigation hell. Judge Posner issued his "Markman order" (construing various claims of the patent) back in August, then the parties exchanged expert reports. Now both sides have filed "Daubert motions" attacking the foundation and/or reliability of the other side's experts.

Just last Friday, Judge Posner issued an order regarding the Daubert motions. His two-page, single-spaced order notes that the Daubert motions raise two issues that require claim constructions not resolved by his previous Markman ruling. Judge Posner wants the parties to brief these two issues before he can rule on the Daubert motions. And, in this order issued last Friday, he says he wants those briefs by Monday—today.

Once again: happy weekend, lawyers!

***Update on East Side Ovens: Reader(s)™ may recall that I originally speculated that the only reason the tiny bakery (East Side Ovens) was included as a defendant was to secure a basis for venue in the Western District of Wisconsin, which has a reputation as a "rocket docket" in patent cases. This was bolstered when the plaintiff cited that reputation in opposition to the defendants' motions to transfer venue. And it was absolutely confirmed on September 12, 2012, when the plaintiff stipulated to dismissal of its claims against East Side Ovens. By that point, the venue issues were done, and the case had been transfered to Chicago for trial in front of Judge Posner. So there was no longer any need to keep the tiny bakery over the coals.

Torvik on Gillette on Posner on Punishment

Great post, Mr. Gillette. I find it cosmically amusing that you started out your post talking about the first case we read in law school, because I read about this Posner concurrence earlier today and it reminded me of the first thing I remember reading about in Crim Law—a case that involved whether to impose sentences that keep people imprisoned into the senescence. For whatever reason, the case always stuck with me. With the issue in the news I thought, "I should look into that and do a post about it."

Well, I just pulled out my old Criminal Law textbook and found the case (with the help of my Crim Law "outline," which, yes I still have). The case is U.S. v. Jackson, 835 F.2d 1195 (7th Cir. 1987). Incredibly, the memorable part of that case is a concurrence by—you guessed it!—none other than Judge Posner:

Posner on punishment

Mr. Torvik may have a different memory but I am pretty sure that the very first Torts class we had went like this.  We were assigned to read the Case of the Thorns (or Hulle v. Orynge 1466. Y.B.M. 6 Edw. IV, folio 7, placitum 18 for citation freaks). After taking roll,  our professor asked us to identify the "procedural posture of the issue for decision."  He simply went around the room asking that over and over.  It was like the Paper Chase.   People were eventually reduced to blurting out random words and someone, probably Mr. Torvik, finally said a demurrer.  Sometimes, maybe often, the procedural posture is not the most interesting thing about a decision. 

Seventh Circuit strikes down Illinois's unconstitutional "eavesdropping" law

UPDATE:

The Supreme Court denied cert. in this case, so the decision of the Seventh Circuit stands, and the aspect of the Illinois wiretapping law that criminalizes the recording of police officers in public is unenforceable in Illinois.

ORIGINAL POST (5/8/2012):

In an opinion issued today, the Seventh Circuit Court of Appeals ruled unconstitutional, on First Amendment grounds, the Illinois law that makes it a felony to make audio recordings of police officers in public. Richard Posner (the man, not the kidney) dissented.

Previous coverage here, here, and here.

Judge Posner: A Critical Critic

Reader(s)™ are familiar with my series of posts on the Posner–Scalia-Garner dustup. Recently, however, Judge Posner came out with another controversial and extremely critical book review, this time of Professor Akhil Reed Amar's new book called "America’s Unwritten Constitution: The Precedents and Principles We Live." A snippet:

WHEN YOU HAVE twelve constitutions to play with, of which only one is a document, you can reach any result you want, and you can say that the result you want is in the Constitution(s), which like the Trinity is at once singular and plural. You put it in, you stir it in a pot called “the implicit meaning of the Constitution as a whole,” and then you pluck it out, congratulating yourself on your “sensitive understanding of America’s unwritten Constitution.”

Perhaps my biases are showing, but I thought this particular hatchet job was pretty awesome. I decided to look for some other Posner attack-reviews. It turns out that the noncuratlex blog has already gone through the trouble of finding the best Posner book reviews. For example, here is Posner's take on Herman Melville's "Moby Dick":

. . . yet, in the final analysis, Melville’s tale of obsession rings hollow from an economic perspective, and thus, proves utterly unpersuasive.  Fairly early in the text, it becomes clear that Ahab could maximize his returns by pursuing other whales, instead of Moby-Dick.  True, Ahab lost his leg to the creature, but that is a classic sunk cost. (Can you see why?) That Ahab foregoes other, better opportunities for oil and ambergris in his hunt for the white whale represents a mystery that the author never satisfactorily explains . . .

For other excerpts, head over noncuratlex.

Prisons have vermin.

In case you were under the misapprehension that living with vermin is good for you, you should start reading this opinion around at page 6.

Posner v. Scalia & Garner: Scalia Speaks

Justice Scalia says that Judge Posner told a lie about Justice Scalia.  Now you know.  This story has more sequels than Die Hard.

Another Posner-Garner Fact Check

Continuing my quest to discover the truth in even the most trivial of matters....

Garner defends the accuracy of his case explanations by describing the cite-checking process they used:

Justice Scalia and I wrote the first drafts of the case explanations ourselves, and we tried to be unimpeachably accurate in them. Beginning more than a year before publication, I 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.

Posner responds with disbelief:

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. 

Since I have the book now, I decided to turn to the acknowledgements page. It includes this:

At Law Prose, 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.

This group presumably includes Garner's cite-checking lawyer-colleagues. Very odd.

Incidentally, I count 101 "persons" (including one corporate person, William S. Hein & Co.) thanked on the acknowledgments page—not 96, as Posner states. Is it just a coincidence that 101 minus 96 is five, and that Posner seems to have missed the five legal researchers at Law Prose? (*See update for my mistaken lawyer math.) Or is Posner actually looking at a different version of the Acknowledgements that left them out? That is the only scenario in which Posner's accusation that Garner is lying is defensible. But that scenario seems very unlikely, particularly since the paragraph thanking the Law Prose researchers goes on to thank several other Law Prose "staffers."

UPDATE: An astute reader informed me that I left out Timothy D. Martin from the list of Law Prose legal researchers, so there are actually six of them, not five. As a result, the "multiple Acknowledgments" theory doesn't hold water.

Posner Comes Out Against The Drug War

Having declared Judge Posner the loser (for now) of the Posner-Scalia dust up, I'd be remiss if I didn't point out that Posner recently said some stuff I agree with wholeheartedly:

I don’t think we should have a fraction of the drug laws that we have. I think it’s really absurd to be criminalizing possession or use or distribution of marijuana... I can’t see any difference between that and cigarettes... But also I’m skeptical about the other drug laws. The notion of using the criminal law as the primary means of dealing with a problem of addiction, of misuse, of ingesting dangerous drugs — I don’t think that’s sensible at all. [Drug laws are] responsible for a high percentage of our prisoners. And these punishments are often very, very severe. It’s all very expensive... [Drug laws] waste of a lot of high quality legal minds, and it’s also a waste of people’s lives who could be as least moderately productive with having to spend year after year in prison. That is a serious problem.

More Posner v. Scalia (and Garner)!

On its website, the New Republic has published Bryan Garner's response to Judge Posner's review of his and Justice Scalia's book and a further response from Judge Posner (Posner's response starts a bit down the page at the link).

One of the main areas of contention is whether Posner is right that Scalia and Garner misrepresent the cases they use to illustrate their interpretative canons. Posner points to six cases that he says they misrepresent; Scalia partisan Ed Whelan takes on all six examples. As I mentioned before, it is impossible without real study to make a reasoned decision about who has the better of it.

But I got a strange urge to do that real study here, thinking it would be a satisfying intellectual exercise to determine for myself who's being sloppy or worse here. I decided to look into one of the cases that Posner says Scalia misrepresents, and then doubles down on in his response to Garner's riposte—Commonwealth v. McCoy.

Here's what Posner says about the case in his original review:

Scalia and Garner commend a court for having ordered the acquittal of a person who had fired a gun inside a building and been charged with the crime of shooting “from any location into any occupied structure.” They say that the court correctly decided the case (Commonwealth v. McCoy) on the basis of the dictionary definition of “into.” They misread the court’s opinion. The opinion calls the entire expression “from any location into any occupied structure” ambiguous: while “into” implies that the shooter was outside, “from any location” implies that he could be anywhere, and therefore inside. The court went on to decide the case on other grounds.

I won't bore you with Whelan and Garner's response, or Posner's response to their response, because from this one excerpt of Posner's review—the only one I even began to investigate—I was able to determine to my satisfaction that it is Posner who is being too sloppy to take seriously. So I called the whole thing off.

Here's why. I decided I would start by reading this McCoy case. All I had was the case title (Commonwealth v. McCoy) and a quoted portion of the statute at issue ("from any location into any occupied structure"). So I typed "Commonwealth v. McCoy 'from any location into any occupied structure'" into Google Scholar. Here's what I got:

Nothing. Hmm.

You may notice that Google, ever helpful, had a suggestion: "Did you mean: Commonwealth v. McCoy 'from any location into an occupied structure"?

Why, yes—it turns out that is what I meant. Because it turns out that Posner misquoted the case (and the statute) in question, twice, in the span of a single paragraph.

Posner is accusing Scalia and Garner of misrepresenting and misreading cases. That means he damn well better get his own case citations right. In the only citation I looked up, he failed.

That's enough for me to conclude that Posner did not use any particular care in cite-checking the Scalia-Garner book or in crafting his review. Ultimately, it's enough for me to conclude that, indeed, his review is a tendentious hatchet job.

(Note: It's possible that Posner simply repeated a misquote that Scalia and Garner made in their book. Possible, but false. I went ahead and bought the Kindle book. Scalia and Garner quote the case, and quote it correctly. Posner introduced the error.)

Notorious B.A.G. responds to J.Dick-Po

Noted legal lexi-con man Bryan A. Garner (a.k.a. Notorious B.A.G), fresh off his niche hit "Reading Law, feat. MC Scalia," has entered the fray to defend the collaboration against fellow Central Time Zone wordsmith Judge Richard Posner (J.Dick-Po). Quoth B.A.G.:

Yo, check it, for real. The trendatious atrocity of J.Dick-Po's review in The New Republic, containing elocutions of perverse adiposities to the new B.A.G.‑A-Scales book, came as a stupefing surprise—a most disappointing one. 

Read the whole thing.