Posner Tackles the Pro Se Prisoner Problem: A Book Review of Reforming the Federal Judiciary

17 Pages Posted: 21 Jun 2018

Date Written: June 5, 2018


The discussion surrounding Richard Posner’s self-published book, Reforming the Federal Judiciary, 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.” But Reforming the Federal Judiciary also 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 contends, because decisions in pro se cases are incomprehensible to pro se litigants. Moreover, because judges have little interest in pro se cases, most staff attorney opinion drafts are rubber stamped by judges and receive little judicial scrutiny.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.” It concludes that though Posner has identified unjustifiable structural inequality, his recommendations would not necessarily fix it. If pro se litigants deserve equal treatment, eliminating all staff attorney programs is a necessary step toward promoting procedural equality. This could be accomplished by assigning pro se cases directly to judges’ chambers, making staff attorneys law clerks, and permitting the new law clerks to work directly with jurists like Richard Posner.

Keywords: prisoners, pro se, habeas, civil rights, federal courts, oral argument

JEL Classification: K41

Suggested Citation

Macfarlane, Katherine, Posner Tackles the Pro Se Prisoner Problem: A Book Review of Reforming the Federal Judiciary (June 5, 2018). Missouri Law Review, Vol. 83, No. 1, 2018. Available at SSRN: https://ssrn.com/abstract=3191224

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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