Judge Richard Posner, mentioned here before, is a Senior Judge on the 7th Circuit Court of Appeals, where he has served for almost 33 years. He still teaches at the University of Chicago, part-time, and he’s written almost 40 books and hundreds and hundreds of articles. The Journal of Legal Studies says he’s the most cited legal scholar of the 20th century.
Appellate court judges like Judge Posner are charged with making sure that in lower court proceedings, rules got followed. Months or a year or more later, they function as the instant replay. They check the trial judge, making sure he or she called things properly, and that any missed calls matter with respect to the outcome. They also review the record to see if: (a) properly admitted evidence supports the result; and (b) the law was properly applied to the admitted evidence.
Appellate court judges do not have within their ambit rewriting the record, or reaching the outcome they like better. We’re talking theory here, however; there are many examples where judges and, too often, Supreme Court justices, reach conclusions unsupported by facts or existing law. That said, that’s not my subject. I’m focused on the appellate court judge—Judge Posner is the most outspoken—who advocates for further developing a factual record, even after the case reaches his court.
Judge Posner’s most recent book is Reflections on Judging. In it he advocates for appellate court judges getting the information they need to decide the case, where the trial court record is incomplete. He titles a chapter The Inadequate Appellate Record and gives it the subtitle “Internet Research by Judges. Is a Word Really Worth a Thousand Pictures.” He refers to oral arguments on appeal where he asked to see Indianapolis Colts merchandise and a Beanie Baby pig, in order to resolve trademark cases. He also discusses Sandifer v. United States Steel Corp., where he had a law clerk dress in work clothes to better understand a dispute about compensation for time spent changing into and out of them. (The decision was affirmed by the U.S. Supreme Court, unanimously.) Finally, he mentions a case in which he used an aerial photograph to better understand the facts associated with a criminal prosecution for trespassing on government property.
Judge Posner’s views about judging are provocative, and go well beyond the issue of the inadequate record and how to deal with it. He makes his case with vigor, facts, and logic. Not all of his views have carried the day, but if anyone can effect meaningful change in the appellate process, it’s Judge Richard Posner, and the process is surely better because of him.
The foregoing background brings us to a very recent case, Lubavitcher-Chabad of Illinois, Inc. v. Northwestern University, No. 12-C7571, decided earlier this month. The case involves a suit by Rabbi Dov Hillel Klein, who runs the Chabad House at Northwestern. There was underage drinking at the Chabad House, and at other campus facilities when they were being used by Rabbi Klein (including a university dining hall, being used for Rabbi Klein’s son’s Bar Mitzvah.) Northwestern ended its relationship with the Chabad House. As a result, Rabbi Klein lost a contract with Sodexo to supervise Kosher food operations on campus. Rabbi Klein alleged discrimination, he lost in the trial court, and he lost on appeal.
The opinion includes plenty of facts not supported by the trial court record, including information about Hasidic Jews, the Chabad movement, and Jewish traditions. (The information was obtained from the Internet, there are links to video, and Google is a tool Judge Posner likes.) It’s an entertaining and easy-to-read opinion, deciding a very simple case. (Read it, for sure!)
The opinion has also generated controversy. The best piece I read is by Debra Cassens Weiss for the ABA Journal (the American Bar Association’s publication), Posner Researches Chabad Online; Bauer Explains His ‘Religious Inclinations’ Concurrence. Ms. Weiss refers to an interview with Judge Richard Bauer, a member of the three-judge panel on the case. Judge Bauer wrote a three-sentence concurrence for which, at first, “bemused” comes to mind. Alas—and read the Weiss piece for details—Judge Bauer thinks sticking with the record serves us best.
I can appreciate the challenges Judge Posner must face. He’s extremely bright, and while the federal court docket is limited, he still gets plenty of cases which were not handled well below. I know, from talking with judges, that one of their biggest challenges involves the case being poorly handled, often right in front of them. Judge Posner pushes the limits of appellate court practice to their outer edges, or beyond, in dealing with these situations.
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