Judge Bauer (with tongue in cheek) Critiques Judge Posner for Looking Outside the Record

November 17th, 2014

After Judge Posner’s judicial fashion show, Chief Judge Wood critiqued him for looking outside the record for a disputed fact. Now, it seems, Judge Bauer has joined the movement, albeit with his tongue pressed firmly against his cheek. In the case concerning the Northwestern University Chabad House, Judge Posner included many facts outside the record, and even suggested that people Google one of the parties.

Since 1985, when the house was founded, it’s been presided over by a Rabbi named Dov Hillel Klein. For a video of him, see “L’Chayim” (“to life”), Nov. 18, 2007, www.youtube.com/wa tch?v=r9cA‐YjohnQ. (Considerable other online material about him can be obtained by Googling his name.)

Ted Frank thought Posner was trolling me with respect to the out-of-the-record fact-finding.

I’m flattered, but doubtful.

But, as noted by Will Baude, attached to the end of the opinion was this brief concurring opinion by Judge Bauer.

I cheerfully concur in this enlightening opinion. The background and various nuances of the religious groups discussed, or alluded to, are not taken from the record of the case but are both enlightening and, I confess, entertaining. Since the result meets my legal and religious inclinations, I have no reason not to endorse the dissertation and ruling and therefore I do.


What could this mean? The ABA Journal learns through this interview:

Bauer explains his concurrence in an interview with the ABA Journal. “I was being tongue in cheek,” Bauer told the ABA Journal, “and let me tell you why. As I pointed out at the beginning of the [concurrence], the citations are to things outside the record. …

“Once you’ve arrived at the opinion based on the record, I think that’s where you ought to quit.”

Bauer added that his religious inclination “is that you should serve liquor at religious events” and notes his comments in oral arguments, where he asked about the university’s treatment of Irish organizations and about Illinois laws on underage alcohol use. “Use of liquor is that important to me–I come from an Irish background,” Bauer said during the arguments.

Once you make a decision based on the record, you should stop there. Well said. Bauer also notes that he chastised Posner once before for going beyond the record.

Baude had noted a previous concurrence by Bauer in which he faulted Posner for opining about the reason lawyers have chosen law over medicine. Bauer said in that concurrence that, although he was one of those lawyers who chose law over medicine, the necessary legal point was already made “and that’s where I would stop.”

Will helpfully has the cite:

I join the opinion insofar as it affirms the grant of summary judgment to the defendants. But as Judge Posner points out, many lawyers decided against medical school because of lack of interest in the clinical aspects of medicine or a deeper interest in the less scientific aspects of law. I was one of those who chose law as opposed to medicine.

I think the opinion made the necessary legal point when it said that the record shows that summary judgment was clearly the right decision. That’s where I would stop.

See, Posner isn’t trolling me. He’s trolling his fellow colleagues on the 7th Circuit!