Micro-Symposium: Richard Posner's 'What is Obviously Wrong with the Federal Judiciary'

Abstract

After Richard Posner gave the Green Bag’s readers a double dose of “What Is Obviously Wrong With the Federal Judiciary,” we invited them to comment on his comments on the courts. So did he: “What I would most like to see would be criticism of the criticisms that I have made of the federal judiciary, and of the American legal culture more broadly, in this two-part article and at much greater length in Divergent Paths (and earlier books and articles). The Bluebook must have its defenders – let them defend their precious tome from me. And so must the awful legal jargon found in so many judicial opinions, and their verbosity; the superfluous headings and subheadings; the silly flourishes; the paeans to the adversary system; the pattern jury instructions; the standards of review; the dread of the italicized period; the spittoons behind the Supreme Court’s bench. The list goes on and on... But no; it seems I am to remain a voice crying in the wilderness. Pretty depressing. This micro-symposium should inspire in Posner both a new cheeriness and more of the same old depression.

Keywords: Kelsen, Schmitt, sovereignty, positivism, originalism, Potter Stewart, Warren Burger, ejusdem, generis, eiusdem, Latin, Loeb, jargon, headings, subheadings, Blaisdell, Brown, Obergefell, Anthony Kennedy, Regan, Lujan