Academic journal article Missouri Law Review

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

Academic journal article Missouri Law Review

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

Article excerpt


The underlying problem is the downright indifference of most judges to the needs of pro se's. (1)

After Judge Richard Posner announced he was retiring from the Seventh Circuit effective September 2, 2017, effusive praise poured in. Posner was described as a leading public intellectual (2) and "[o]ne of the nation's most influential judges and legal writers." (3) The reception to Posner's sixty-sixth book, Reforming the Federal Judiciary: My Former Court Needs to Overhaul Its Staff Attorney Program and Begin Televising Its Oral Arguments, has been less flattering. Posner's decision to include Seventh Circuit memoranda, draft opinions, and internal emails has raised ethical concerns. (4) 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." (5)

Unfortunately, the book's tone and ethical red flags are drowning out its potential for true reform. As Matthew Stiegler noted in a widely-shared blog post:

Blazing a spotlight on the separate-but-equal appellate review that pro
[se] litigants receive is vitally important. Hardly anyone understands
how pro se appeals are handled by the federal courts--that is, how
differently than appeals by litigants wealthy enough to hire lawyers.
And hardly anyone cares. Posner is on to something big here. (6)

Posner worked to draw 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 and emphasized his interest in the pro se. In one interview, he declared 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." (7) "I didn't think the pro se litigants were getting a fair break," he explained. (8) In an email to the Chicago Daily Law Bulletin, he went further, commenting that "how the court treats pro se litigants" accelerated his retirement. (9)

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. (10) 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. (11) Posner recommends that each staff attorney-authored opinion be written for an audience of limited intelligence. (12) Before resigning, he volunteered to review and edit staff attorney opinion drafts to make them more accessible to an uneducated pro se reader. (13) His proposals regarding the Seventh Circuit's staff attorney program were rejected. This led to his resignation. (14)

The Preface to Reforming the Federal Judiciary describes Posner's August 16, 2017, decision to publish his latest book through Amazon's CreateSpace, as opposed to a university press. (15) He announced his retirement on September 1, 2017. The book's preface is dated September 5, 2017, (16) and the book was available on Amazon as of September 7, 2017. (17) Though it was published after his resignation, it appears that it was completed while he was still a Seventh Circuit judge.

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." (18) His staff attorney proposals offer the most reform potential. …

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