Posner Tackles the Pro Se Prisoner Problem

Posted: 19 Oct 2017 Last revised: 28 Feb 2018

Date Written: October 18, 2017


After Judge Richard Posner announced that he was retiring from the Seventh Circuit effective September 2, 2017, effusive praise poured in. The reception to Posner’s 66th book, published shortly thereafter, has been less enthusiastic. The discussion surrounding Posner’s self-published book has centered on its descriptions of disputes with former colleagues, Posner’s decision to publish internal court documents, and his frustration that the Seventh Circuit rejected his offer to “re-write all his circuit’s staff attorneys’ memos and draft opinions before they went to his fellow judges.” Unfortunately, the book’s tone and ethical red flags are drowning out its potential for true reform. Posner draws attention to the pro se aspects of his newest project. He gave several interviews after his retirement in which he previewed the subject of Reforming the Federal Judiciary, declaring himself newly committed to the “plight of litigants who represent[] themselves in civil cases,” those with real grievances whom the legal system nevertheless treats “impatiently, dismissing their cases over technical matters.” Reforming the Federal Judiciary calls for transforming the Seventh Circuit’s staff attorney program as a result of its author’s concern for the downtrodden litigants whose fate the staff attorneys decide. Staff attorneys and the courts are not doing enough for the pro se, Posner concludes, because decisions in pro se cases are incomprehensible to pro se litigants. Before resigning, he volunteered to review and edit staff attorney opinion drafts to make them more accessible to an uneducated pro se reader. His proposals regarding the Seventh Circuit’s staff attorney program were rejected. This led to his resignation. This book review is focused on what Posner deemed the book’s “most important theme”—“the need for better treatment by the federal courts of pro se litigants.” His staff attorney proposals offer the most reform potential. This review examines the assumptions underlying Posner’s desire to assist pro se litigants, including the conclusions that pro se litigants are: “very often poorly educated and/or of limited intelligence”; “ignorant of the subtleties of the law”; and “basically fairly normal people who because of bad luck, psychological problems, poor judgment, lack of family support, or other internal or environmental misfortunes, simply have great difficulty living a law-abiding life.” In examining Posner’s newfound empathy for the pro se, this review will argue that if pro se litigants deserve equal treatment, then eliminate all staff attorney programs. Assign pro se cases directly to judges’ chambers, make staff attorneys law clerks, and allow the new law clerks to work directly with jurists like Richard Posner.

Keywords: Posner, appeals, pro se, prisoners, civil procedure, federal courts

JEL Classification: K4, K41, Y3, Y30

Suggested Citation

Macfarlane, Katherine, Posner Tackles the Pro Se Prisoner Problem (October 18, 2017). 83 Missouri Law Review (2018, Forthcoming), Available at SSRN: https://ssrn.com/abstract=3055423

Katherine Macfarlane (Contact Author)

University of Idaho College of Law ( email )

P.O. Box 442321
Moscow, ID 83844-2321
United States

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