Stream of Posnerian Consciousness

September 6th, 2014

I’ve now had the time to finish reading Judge Posners SSM opinion. Later, I’ll comment on the substance of the opinion. Here, I’d like to focus on the written opinion itself.

Usually when you read an appellate decision, there are separate sections. There’s usually an introduction at the very beginning providing a brief 1 or 2 paragraph overview of the decision. Part I is the facts. Part II discusses the precedents. Part III goes over the analysis. Part IV responds to other arguments, or a dissent as it may be. And at the very end, there is a conclusion, summarizing the issue. Virtually every Circuit Court decision I’ve ever read follows this format, more or less. You know the drill.

There’s a few reasons for this common pattern. First, it helps the author separate the different parts of the opinion, and breaks it down into more manageable components. Writing is always easier in small parts. Second, it helps the reader follow along. Without a familiar roadmap, it’s easy to get lost. We know what to expect. Third, well, it’s tradition, and judges like to stick with what works.

And then there’s Judge Posner. His opinion in Baskin is typical Posner prose. There are no sections. There are no breaks. There is no introduction or conclusion. The decision reads like one, long Posnerian stream of consciousness.

And I bet he wrote it as a stream of consciousness, perhaps in one sitting or close to it. I don’t mean this as a sleight. Most of us can plan in our heads maybe a few sentences in detail, maybe a few paragraphs at a high level, and a rough, overall outline for a paper or opinion. Posner, I’m sure, can see the entire opinion in his head. Richard Epstein does something similar when he delivers a 20-minute lecture, extemporaneously, that sounds like he scripted it in advance. It’s a rare gift. I’ve read that the great hockey player Wayne Gretzky would try to see the game while playing, not from his perspective, but from a bird’s eye view. This is how I imagine Posner writing his opinions.

Further, only 9 days elapsed from oral arguments till the opinion. This included time┬áto get the other judges on the panel to sign on. If I had to guess he finished it in a day or two, had his clerks cite-check it, and then circulate it. (I’ve heard that a clerkship with him is among the least coveted in the 7th Circuit, because the clerks tend to do the least amount of work, other than fashion shows).

From a literary perspective, the opinion is remarkable. I’ll have more on the substance of the opinion in another post.