“Have you lost your mind?”

One of my colleagues recommended I read Michael Kinsley’s “personal history” piece in the New Yorker magazine entitled “Have you lost your mind?” and subtitled “More bad news for boomers.” (subscription required).  As you might expect from a writer* of Kinsley’s talent, the piece is both brilliant and moving.

I urge every lawyer and judge to get a copy of Kinsley’s article and read it carefully. The article recounts Kinsley’s struggle with Parkinson’s disease and his partial cognitive decline.  A wonderful review of the article is presented in the Elder Law Prof Blog.

Condensed and greatly so, here is a summary of what I learned from Kinsley’s penetrating piece:

  1. Aging and disease impact mental function. That is not new.
  2. Given our enormous demographic bulge of baby boomers, this country (including especially lawyers and judges) will soon be forced to deal with a tidal wave of fellow citizens whose mental function is impaired. That is not new.
  3. When we talk about impairment of mental function, we fail to understand that “mental function” is not only a decline of recent or remote memory or Alzheimer’s or I.Q. Rather “mental function” is like a bowl of marbles. Each marble represents a particular function. One can lose some marbles, but not others. That has real world significance.  A person whose “impulse marble” has gone, may be perfectly able to write stunning and insightful prose. That is new.
  4. Because there will be so many of us who have lost some, but not all, of our marbles as we decline, all of us should treat regular cognitive testing just like we treat annual physical exams. That is new.


*Kinsley is political journalist, commentator, television host, and pundit. He is a Harvard trained lawyer and former Rhodes Scholar.

12 responses

  1. “mental function” is like a bowel of marbles.

    Depends on your politics. For some, it’s more like a bowl of marbles.


    Eric Hines

  2. Don’t sit for longer than you should. Not as mentally fit or sharp as you want to be, find a place where your are. Draw. Paint. Do something new. I let my law licenses lapse. Had to or I would have taken on some cause. Now, I make portraits with a camera.

  3. Eric,

    Jan, one of my career law clerk, saves me from these errors at work. She has offered to edit the blog, but, of course, I declined. I am too constipated to ask for help.

    Thanks for the catch my friend. Fix made.

    All the best.


  4. Glad you enjoyed it, Rich. And while there may be no cure for the gradual loss of cognitive function most of us boomers will face, there are many effective cures for the “bowel full of marbles.” (I’m so glad you don’t use an editor!)

  5. The bad news is that hoi polloi would have to pay for the article–not everyone has free, unlimited access to Lexis/Nexis–but I don’t really need to read it to know what it says.

    I think of the mental vegetables like Robert McWilliams[1]–who was well into his nineties and still on senior status–depriving people like me of due process. When you get that old, you usually don’t have the energy to issue vigorous dissents. When one of these brain-dead fossils rubber-stamp decisions, you are denied due process.

    But then again, as Judge Kopf reminds us, even at the trial court level, there is no way to get the attention of an Article III judge … short of holding his family hostage:

    Remember, 9 out of 10 times a law clerk—not the trial judge—is the only one closely reading your stuff. (Oh, don’t pretend to be shocked!) The easier you make it for the law clerk, the less you have to worry that the clerk will go wild.

    I’m not shocked; I’m OUTRAGED!!! If those clowns could do the job, we wouldn’t have a need for the ostensible expertise of Article III judges. And since just about every case is decided on the briefs anyway, we could save a lot of taxpayer money by farming the Article III judges’ work out to India. I would much rather have a conscientious Zimbabwean judge read my briefs before he decided my case than have the arrogant, pompous, and self-important clowns of Article III render a summary decision out of sheer ignorance between banter about their golf game.[2]

    In theory, a crucial safeguard of our rights is that our claims will be carefully assayed by Article III judges who have been vetted for competence. In practice, review by the United States Supreme Court really means a cursory review by a fresh-faced 25-year-old kid out of Harvard, unqualified to discharge a Justice’s duties, David R. Stras, The Supreme Court’s Gatekeepers: The Role of Law Clerks in the Certiorari Process, 85 Tex. L. Rev. 947, 975 (2007), and at the trial court level, it is in substance decided by some clown from Creighton who only got the job because the judge owed Daddy a favor. And as a general rule, the older that the judge gets, the less stringent their supervision becomes. Most of us have watched parents and grandparents decline, and it would be folly to think that it doesn’t happen to judges like Rehnquist (drug-induced fog, as well as his later years), Stevens[3], and McWilliams.

    Most cases worth fighting–as opposed to settling–turn on a relatively discrete point of law, which the average rookie isn’t going to be astute enough to appreciate. It took me a while to unlearn all the crap I learned in law school, a process that elbow clerks haven’t had time to go through. This, in turn, raises an obvious question:

    How can you decide one of these fine issues of law when you haven’t even read the goddamned briefs?

    Judges haven’t so much lost their minds as we have lost our rights under law.


    [1] A assessment based on personal experience; he had the temerity to die before I got a chance to rip him a new one in a deposition in rei memoriam.

    [2] Again, a crucial source of this chilling observation is the sainted Richard Arnold. Perfunctory Justice: Overloaded Federal Judges Increasingly Are Resorting to One-Word Rulings, Des Moines Register, Mar. 26, 1999, at 12 (50 federal appeals decided in two hours in Eighth Circuit); Accord, e.g., Alex Kozinski (Chief Judge, Ninth Circuit), Letter (to Samuel A. Alito, Jr.), Jan. 16, 2004 at 5 (Ninth Circuit panels routinely issue 150 rulings per three-day session). Our courts’ work product is so uniformly abysmal that Judge Kozinski described it as “sausage,” unfit for human consumption. Tony Mauro, Difference of Opinion, Legal Times, Apr. 12, 2004. No one even tries to get it right any more, except in the high-profile cases.

    In the rest of the world, the situation is far better. Throughout the Commonwealth, a duty to act judicially has always been equated to a duty to provide procedural fairness and natural justice, notably extending to “the actual decision-making procedure or process, that is to say, to the manner in which and the steps by which the decision is made.” Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 366 (Australia). Natural justice has been described as “fair play in action,” Nicholson v. Haldimand-Norfolk Regional Board of Commissioners of Police, [1979] 1 S.C.R. 311, 326 (Canada) (citing Furnell v. Whangarei High Schools Board, [1973] A.C. 660 N.Z. (New Zealand), an essential element of which is that a man shall not be a judge in his own cause (“nemo iudex in sua causa”). Dimes v. Grand Junction Canal [1852] 3 H.L.C. 759, 793 (England). For some as-yet-unknown reason, no Article III judge is capable of recognizing the unfairness inherent in deciding their own causes and admitting it in public.

    [3] Judges solve the problem of declining mental faculties by doing less work; Stevens essentially admitted as much:

    Seated in a comfortable chair on a stage at the University of Florida recently, Stevens betrayed no sign that he is preparing to retire, remarking only that if the court had maintained the same heavy caseload today it had when he became a justice in 1975, “I would have resigned 10 years ago.”

    Justice Stevens Shows No Signs Of Quitting, Associated Press, Nov. 29, 2008.

  6. Judge:
    I could not access the entire article (my loss, I am sure) but, as a professional Baby Boomer who sits in an office all day, I was more disturbed by the recent story that this could lead to increased incidences of cancer. Perhaps we should all put our stock in companies that manufacture standing desks?

  7. Michael Kinsley wrote an opinion piece years ago about a case I was involved with which had enormous media attention. I think it was the best piece written and showed his perception and ability to think for himself, rather than participate in pack journalism. I have been a long-time fan of Michael Kinsley.

  8. Laurie,

    I never use an editor ’cause I’m always looking for a bowel full of cherries. You’d be surprised how many times it works.

    All the best.


  9. It was me, the Duck, who suggested this. Would visit you if you need company. Going to Russia, after photo camp in Vt, but will be available in mid June. Liberate yourself. Laugh. Love. Smile. Be Happy.

  10. All babble. Need to experience the decline to appreciate it. No wonder people age and become more angry. Lucky for me, my passion came out early, now I can relax and wait for the warm winds of death.

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