Posner on same-sex marriage

That Judge Posner has changed his mind on the same-sex marriage question is only slightly less dramatic than if the Pope decided that the Church had been too tough on Satan. Less bombastically, Posner’s change of position was a sea change in the judge’s thinking.  Professor Ronald K.L. Collins details this about-face in Posner on Same-Sex Marriage: Then and Now. It is captivating reading.

As I concluded Professor Collin’s piece, I thought of Mr. Justice Holmes. Some may remember that he too changed his views dramatically on the value of free speech in his Abrams’ dissent. See Thomas Healy, The Justice Who Changed His Mind: Oliver Wendell Holmes, Jr., and the Story Behind Abrams v. United States, 39 J. Sup. Ct. History (March 2014)  (download free at the Social Science Research Network) (Abstract: “It is one of the great legal and intellectual mysteries of the twentieth century: Why did Oliver Wendell Holmes change his mind about the value of free speech in the turbulent months following World War I and write his landmark dissent in Abrams v. United States? In this Article, I provide the most comprehensive answer yet to this question. Relying upon extensive archival research – including a number of previously unpublished letters – I argue that Holmes’s dramatic transformation was the result of two related, but distinct developments. First, during 1918 and 1919, Holmes was the target of an intense behind-the-scenes lobbying effort carried out by a group of young progressives that included Harold Laski, Felix Frankfurter, Learned Hand, and the editors of the New Republic. Holmes cared deeply for these young men, viewing some of them like sons, and was thus surprisingly susceptible to their influence. Second, at the same time these men were lobbying Holmes to adopt a more expansive view of free speech, two of them – Laski and Frankfurter – came under attack for their own radical views. Holmes learned about their difficulties in the spring of 1919 and wrote several letters on their behalf. Then, when trouble flared up again that fall, Laski and Frankfurter asked Holmes if he would write an article on tolerance for the Atlantic Monthly. Holmes declined, citing his heavy workload, but several days later he wrote his dissent in Abrams “as if possessed,” he explained to Frankfurter. Thus, I argue, Holmes’s dissent can be seen as more than just an abstract defense of free speech. From the perspective of his young friends, it was a defense of them.”).

It is well-known that Posner holds Holmes in high regard. See, e.g., Richard A. Posner, The Essential Holmes: Selections from the Letters, Speeches, Judicial Opinions, and Other Writings of Oliver Wendell Holmes, Jr., (Paperback – January 1, 1997). Consequently, we should not be surprised then that Posner emulates the great man in the flexibility of the mind. Indeed, Professor Collins provides us important insights into the ability of Posner to see the world differently as time marches on without the slightest concern about the bugaboo of “inconsistency.”

I urge you to read Collins’ piece. As you do, remember Emerson’s dictum: “A foolish consistency is the hobgoblin of little minds.”


To traumatized law students: How does it feel?

Many years ago, the greatest philosopher of all time, Bob Dylan, asked the most important question of all time. “How does it feel?”

For the law students who suffered trauma regarding the Garner/Brown tragedies, I have a similar question. How does it feel as you contemplate the shooting death of an Asian and Hispanic cop by a crazy black guy? If you answer the question seriously, and I truly intend it as a serious question, you might learn something worthwhile.

Honestly, no snark intended: How does it feel? This old white guy is curious.



Jailhouse Doc


William Wright, M.D., is at again. This time he writes about running the medical department at a large urban jail in Colorado that houses about 1,500 inmates. As I have indicated before regarding Bill’s first book Maximum Insecurity, the doctor is a renaissance man and a lyric writer.

We learn something more about Wright in his second book, Jailhouse Doc. That is, physicians like Wright, particularly those who have practiced as surgeons,* can’t be pushed around. More on that later.

Wright “retired” from his speciality surgery practice, and then, out of boredom, took a job being a doctor at a  Colorado maximum security prison. When offered the job of running a jail medical facility closer to home and one which paid better, Wright took the offer.

Remember now, Wright was moving from a maximum security prison to a jail. How hard could that be? Jails are run by county sheriffs, right? Go ahead, picture Andy of Mayberry. WRONG.

If you are a lawyer, a judge, or an inmate, you know the difference between prisons and jails. By comparison, prison are relative islands of tranquility and normality when compared to the utter chaos and abject craziness of jails.

Most of the time, jails hold prisoners for a short time. Frequently, thirty or sixty days is the length of stay, although a fair number stay a longer as they await disposition of felony charges. Think of an Army MASH unit. There is a never-ending stream of patients.

Many are really sick; that “is acutely and chronically ill street people” present themselves to the medical staff at jails each and every day. Wright tells us about “homeless men whose socks had literally grown into their feet” and women “who would come in with tampons that had been in place for months.” Addiction and psychiatric problems abound.

Jeffrey E. Keller is a Board Certified Emergency Physician with 25 years of emergency medicine practice experience before moving full-time into his “true calling” of Correctional Medicine. He is the Chief Medical Officer of Centurion as well as the Medical Director of Badger Medical, which provides medical services to several jails and juvenile facilities in Idaho.

Here is Dr. Keller’s take on Dr. Wright’s book:

Everyone who has worked in corrections for any length of time accumulates a litany of anecdotes about the funny and crazy things that go on. These tend to get passed around whenever correctional personnel get together at parties or conferences. Invariably, someone eventually says, “You know, someone should write these stories down.” Well, finally someone has.

Dr. William Wright has published a sparkling and humorous memoir of his time working in a county jail entitled “Jailhouse Doc.” This book is well worth reading. In fact, it is almost a “must read” for those of us who work in correctional medicine. Not only is it the only book I am aware of about jail medicine, it is well written, funny and informative.

If there is such a thing as “medical realism” in the correctional context, Wright is the master of it. While the book is written around anecdotes, collectively those vignettes paint a whole picture. The truth is that many American jails are hell holes.**

Yet quality correctional care in jails, including medical treatment, is often provided by employees who work under some of the most stressful conditions imaginable. Ultimately, Dr. Wright’s book is paen to those honorable and courageous people–from deputy sheriffs, to nurses, to doctors and beyond.

Here, in no particular order, are few of the anecdotes that Wright uses to paint the picture:

*  It is not a good thing, medically speaking, to put drugs up your ass or, for that matter, any other orifice. In a jail, when prisoners first enter those hallowed halls, the medical staff must be very aware of the possibility that the new inmate is mulling drugs. Dr. Wright speaks knowingly of instructing a new inmate to remove a balloon of drugs from the hole through which a colostomy bag was attached.

*  The doctor laments the female inmate whose blood pressure began to drop like a rock as a result of a package of drugs that she had stashed in her vagina only to have it leak out and intoxicate her. And he notes laconically the inmate who died of a heroin overdose when the balloon popped. His body contained 8,000 times more than the lethal dose.

*  Wright describes a facially absurd accusation that he sexually assaulted a male prisoner during an examination in the busy clinic, the obligatory investigation that followed and his exoneration. Why the false claim? Sociopaths get bored too!

* He speaks of ICE (Immigration and Customs Enforcement) and the prisoners housed at the county jail by the Feds awaiting deportation. He speaks almost lovingly of these poor souls and their wonder that he willing provides medical care, perhaps for the first time in their lives, while speaking Spanish with them. Interestingly, his dislike of ICE mirrors the experience of Dr. Keller. (Secret: I don’t much like ICE either.)

*  Wright discusses an important issue regarding the treatment of Hepatitis C. There are new drugs on the market that may cure this awful disease***, but they are expensive, extremely expensive–perhaps a $100,000 per patient for a full course of treatment. Will these curative drugs be used in jails when all too frequently the causes of Hep. C–dirty needles and such from drug use–are surely to return to the jailed inmate’s life after he or she hits the streets? This is a huge policy and legal question for which we have no answer. As Wright says, “If you have a solution to this problem, write it on the back of a twenty-dollar bill and send it to me.”

*  If you were a doctor, how would you treat the medical needs of a husband and wife in jail accused of burning their children alive to recover insurance money so they could pay their drug suppliers and thus retain the luxuries of their very lucrative business? Dr. Wright speaks candidly and openly about his approach.

*  There are funny moments, many of them. Consider the one simple example of the inmate who stressed to Wright the need to see an “obstetrician” because he needed glasses.

Least you worry that the doctor is exaggerating, consider this review on Amazon from someone who worked closely with Wright:

Dr Wright, I heard about this book from a handful of others, many of them El Paso County Sheriff’s Office employees. Having worked with you as the HSA at CJC, I have to admit, this was a great read – very quick and easy to follow. Having actually worked with you there at CJC, it was very comical and reminiscent of some interesting times. Thank you for your ability to “paint a picture” with your experiences and share them with others not familiar with the correctional medicine environment. I encourage others in the medical field to share this book with others that may be interested in ‘testing the waters of correctional medicine’. Working in corrections is definitely not for everyone; however, it is also not a path often thought of for medical personnel. I have great, great respect for those I worked with (including you) at CJC (both medical and many in Security working for the Sheriff’s Office), and encourage readers to go check it out when you are done. I encourage those in the medical field, from Medical Assistants all the way to provider level, to check out corrections and give it a try. Every day was an adventure and no two days are ever the same – these stories in this book are definitely real….and only the tip of the ice berg for what you will see and encounter. Those that know you, know you have a passion for helping people and doing whatever you can to make the best of the situation at hand. You are not only missed by many of the medical unit staff (most of which are not even there anymore), but also by me.

Wendy H., Amazon, Memories are Abundant!!!, October 22, 2014

As Dr. Keller notes, Wright’s time at the jail “does not end on a positive note.” Indeed, the book ends on a decidedly dark note that raises extremely important policy questions about how medical care should be provided in jails (and for that matter in prisons).

Who really runs the medical facilities within a jail? Is it the Sheriff or Chief Deputy who may think they know more about medicine than the medical professionals? Is it the corporation that contracts to provide medical care to jails in order to make a profit?

I won’t spoil this somber story. You must read the book to find out. I can tell you this though: Physicians like Wright, especially those who were trained as surgeons****, will not be pushed around. For that, correctional docs, like Wright, deserve nothing but praise.


*Trained at the University of Michigan Medical School, Wright practiced 30 years as neuro-otologist. That is “a branch of clinical medicine which studies and treats neurological disorders of the ear. It is a subspecialty of otolaryngology-head and neck surgery.

**For one such example that I dealt with personally in 1994, as a young district judge, see Whitnack v. Douglas County, 16 F.3d 954 (8th Cir 1994) (there was “‘paper and food and stuff on the floor . . .there was ‘hair, dried mucus, spit, [and] vomit in the sink’ . . . there was ‘dried human waste’ on the toilet seat. . . . there was ‘a partially-eaten pear’ and ‘a partially-eaten sandwich’ on the floor . . .there were ‘cigarette butts and ashes on the desk’ . . . there was garbage in the toilet bowl . . . there were dried puddles of urine on the floor . . . there was dried ‘snot’ on the wall.”;  a guard refused to give the plaintiffs cleaning supplies; the Court of Appeals stated that “we find the conditions of Cell C-18 . . . , to have been deplorable”; however, the Court of Appeals ruled that the jury’s verdict of nominal damages in the sum $1.00 plus my award of attorney fees must be reversed because the 24-hour confinement in the filthy cell was not long enough to inflict a Constitutional injury).

*** My brother-in-law is a liver specialist and the head of the department that treats such ailments at the University of Nebraska Medical Center. He has spoken to me about the revolutionary potential of these drugs and their costs.

****I revere surgeons. See here.

会说话的鹦鹉–talking parrot

Petra loves the talking parrot that is on the way to Wa-Mar (Walmart) in Shekou. He makes money for his master by saying,


That means “hello” in Mandarin. Then, the customer pays the master, and the customer may feed the parrot from seeds made available for that purpose.

China is a wonderous place for a little white girl with a heart of gold and silver slippers.




The internment of US citizens of Japanese ancestry

Photo credit: Professor Michael Bess. See here.

Photo credit: Professor Michael Bess. See here.

The holiday season is upon us. Most of us try to think good thoughts during this time. That is true even for those of us who are unbelievers. From the Jackson List, here is something in that vein worth reading and celebrating:

For the Jackson List:

The background history is well known—

· On December 7, 1941, Japanese attackers inflicted grave damage on the United States Navy at Pearl Harbor, Hawaii.

· The next day, President Franklin D. Roosevelt sought and obtained a congressional resolution declaring that the U.S. was at war with Japan.

· In February 1942, President Roosevelt signed Executive Order 9066, authorizing the Secretary of War and U.S. military commanders to prevent possible espionage and sabotage by declaring parts of the U.S. to be military areas, excluding persons therefrom, and taking other steps that commanders deemed appropriate.

· Pursuant to that authority, the U.S. Army soon declared the west coast of the U.S. to be an area under military command.

· The Army then issued a series of security orders directed at persons there who were of Japanese descent (both immigrants and U.S. citizens). These orders included curfews, then exclusions from coastal areas, and then directives to report to internment camps in the interior of the country.

· The U.S. Congress and President Roosevelt then enacted criminal laws penalizing violations of those orders.

· During the war years, over 100,000 Japanese-Americans, obeying these orders, were interned by the U.S. government.

· Some—relatively few—Japanese-Americans refused to obey those government orders. Some were prosecuted and convicted, and some of their appeals reached the Supreme Court of the United States.

· In 1943 and 1944, U.S. and allied forces, fighting island to island and at horrific cost, began to prevail – the war moved ever farther west, away from the U.S. and its people, toward Japan, and toward Allied victory.

· In June 1943, the Supreme Court affirmed unanimously a curfew violator’s conviction, holding that the Constitution empowers Congress and the President to enact and enforce such a restriction in what they regarded as the interest of national security (Hirabayashi v. United States).

· Two other Japanese-American cases – one challenging the constitutionality of a military exclusion order (Korematsu v. United States), the other challenging the legality of the government’s internment of a concededly loyal U.S. citizen of Japanese ancestry (Ex parte Endo) – were argued before the Supreme Court in October 1944.

As decisions in those cases were impending (and probably a Supreme Court leak tipped off the executive branch that decisions, perhaps adverse, were coming very soon), the United States government decided … to stop.

On Sunday, December 17, 1944 — seventy years ago today — General H. Conger Pratt, the U.S. Army’s western commander, located in San Francisco, issued Public Proclamation No. 21. It revoked, effective January 2, 1945, the military orders that had resulted in the internment of Japanese-Americans.

The Supreme Court then acted, the very next day.

In Ex part Endo, which the Justices and the press regarded then as the big case/the frontal assault on the internment system, the Court held unanimously that the government had no legal authority to intern a loyal citizen.

In United States v. Korematsu, a lagging case regarding a citizen’s conviction for violating back in 1942 an order that excluded him, based only on his Japanese-American ethnicity, from the coastal area in which he lived, a divided Court—three, including Justice Jackson, dissented—upheld the constitutionality of the executive branch’s actions in what it claimed to have been national security interests.

United States government treatment of Japanese-Americans during World War II is and should be a topic of constant study and reflection. Those executive (presidential and military) and congressional actions show how injury, knowledge, power, fear, ignorance and prejudice can combine to produce oppression. The judicial decisions show deference, rationalizations and perhaps institutional abdications.

General Pratt’s announcement of December 17th also shows, however, something that is hopeful. It was possible, and thus it is possible, for officials to wake up, to rethink, to change course, to improve behavior, to turn pages. Even when officials act late, and even when they act in response to forces and developments that largely have forced their moves, such actions are the promise of self-government.

* * *

To Professor John Q. Barrett, Professor of Law, St. John’s University, New York, NY and Elizabeth S. Lenna, Fellow, Robert H. Jackson Center, Jamestown, NY thank you for reminding us that redemption is possible even for governments. And, more broadly, thanks for the Jackson List, it is a pearl of great price.


Holiday season down under

Keller's birthday is in December, and Christmas follows on not much later. X-Mas forecast for Albury, Australia: 64 / 80 °F. Heavy rain, and the more sun than clouds. Christmas especially happy this year, with new baby Indigo. Also, stress brought down a small notch too. Stacey submitted her PhD dissertation (like Keller, on the biology of fishes) last week. Two Dr. Kopf's soon.  Reuben the dog remains goofy. Fletcher the boy remains curly.

Keller’s birthday is in December, and Christmas follows on not much later. X-Mas forecast for Albury, Australia: 64 / 80 °F. Heavy rain, and then more sun than clouds. Christmas especially happy this year, with new and very cute baby Indigo. Also, stress brought down a small notch too. Stacey submitted her PhD dissertation (like Keller, on the biology of fishes) last week. Two Dr. Kopfs soon. Reuben the dog remains goofy. Fletcher the boy remains curly.

Posner on greatness

Professor Collins’ series on Judge Posner give us many insights into the thinking of a great judge. The irony is that Posner doesn’t care about being great. He is bored by the idea.

It is not that Posner lacks for ego. Oh, God(s), no! He has ego aplenty. In fact, his ego is so strong that he “nicht eine Scheiße” about the opinions of others. His thinking, his research, and his writing is what he cares about. If others find it wrong, or even immoral, Posner is perfectly indifferent to their opinions. What he does care about–what drives him–is the quality of his intellectual effort and the joy that he derives from that endeavor.


When a quasi-sick sap sentences a really sick controlled substance seller

Yesterday, I did something out of character–I don’t think I have ever done anything quit like it before. I sentenced a guy in his early fifties to time served plus a life of supervised release even though his criminal history was IV, he sold drugs and probably kept a gun under his sofa. He cooperated with the government, but the cooperation, while helpful, was not of the “hero” variety.  The government moved for a departure under the Guidelines and the statute. The really good and very fair AUSA recommended a thirty percent reduction from the low-end of 150 or so months under the Guidelines. By doing so, the government essentially freed me from the ten-year statutory minimum sentence.

As a part of, and in conjunction with, granting the departure motion, I varied downward even more than I might otherwise have done ’cause the guy was really sick. In fact, over the last 23 years as a district judge, he is the sickest person I have seen at the time of sentencing. And I have seen a bunch of sick folk.

Sentencing had long been delayed for significant surgeries and other important medical procedures. The defendant suffered from serious heart problems and serious problems with cancer. The fellow had a list of medications as long as your arm. He could barely walk with his cane. Yet the Bureau of Prisons said “no problem,” they could care for him in a humane fashion. Incidentally, I don’t doubt the BOP.

In the end, I just couldn’t see that it made sense to put the guy in prison. I uttered a bunch of mumbo-jumbo at sentencing that I truly meant and I hope makes sense, but it was, nonetheless, a rationalization for my instinct. My gut told me that no one–the public, the defendant, the BOP, or other drug dealers–would be served well or deterred by a prison sentence for this fellow.

Now, here’s the kicker. I have had cancer (Hodgkin’s lymphoma), and I may still have it. In January, I will undergo chest surgery (via VAT) to take out a nodule in my lung. The surgeon will also strip out some lymph nodes adjacent to the lung. The humor, I mean tumor, board thinks we should definitively determine what is going on in order to deal effectively with cancer if there is some still lurking in or around my lung.  Because of the anatomy of the human body, thoracic surgery is the only option.

So why do I write about this? I do not write to discuss the merits of my sentencing decision. Rather, I write about this case in pursuit of my “jihad” for transparency. Did my health status impact my sentence? I don’t think so, but the truth is that one can never know for certain about such things.

In the real world, judges have personal issues that they balance all the time against an abstract standard of impartiality. These types of issues are not susceptible to black letter ethics rules or law. Such decisions are made by the judge himself or herself after serious reflection. We do our best and consider these matters with utmost seriousness, but in the end the public and the bar must of necessity rely upon our sense of honor and our knowledge of ourselves. That sounds wishy-washy. It is. But, that’s life and that’s the truth.



What’s really behind the Sony hack? “I’m so ronery!”

The world pretends to ponder the motivation for the Sony hack. In our racist and capitalistic viciousness, we consciously overlook the harm our isolation of North Carolina, I mean Korea, has caused their diminutive leaders.

The hack was a cry for help, a helpful trigger warning if you like. Kim Jong Un, just like his father Kim Jong-il, is “so ronery” it hurts. We must show empathy for survivors of roneryness. I am cancelling court today in solidarity.

Although it may be almost more than you can handle, view the following, and then weep with me in empathy for all those who are so ronery.


The value of law reviews to judges

Judge Harry T. Edwards

Judge Harry T. Edwards

Judge Harry Edwards is a distinguished jurist, and he was a distinguished practitioner and then a highly regarded law professor at Michigan. He has long been known for his criticism of law teaching as focusing too much on the obscure and the theoretical to the exclusion of doctrine and practice. See Harry T. Edwards, The Growing Disjunction Between Legal Education and the Legal Profession, 91 Mich. L. Rev. 34 (October, 1992).

The judge has now written an essay entitled Another Look at Professor Rodell’s Goodbye to Law Reviews, 100 Va. L. Rev. 1483 (2014).  He concludes this way:

I am not advocating a return to the narrow-minded, provincial doctrinal scholarship that Professor Rodell singled out for criticism. My hope is that law schools will lead the way in valuing the work of all good scholars, those who write articles focused on professional practice, procedure, doctrine, legislation, and regulation, as well those who focus on theory, philosophy, and empirical studies. The law schools and law reviews should consider seriously Professor Rodell’s view that “law is supposed to be a device to serve society, a civilized way of helping the wheels go round without too much friction.” If the status quo remains, our profession may find itself criticized for merely “diddling while Rome burned.” Professor Rodell’s memorable phrase is as apt today as it was when he wrote it in 1936.

Id. at 1511.*

My focus in this post is on law reviews as opposed to law teaching more broadly. With that said, I am in general agreement with Judge Edwards. Most of the time, most law reviews are not helpful to most judges and most practitioners.

Almost 20 years ago, after a lot hard work and in celebration of the 75th anniversary of the Nebraska Law Review, I studied the impact of the Nebraska Law Review on the Nebraska Supreme Court over a span of 25 years. I found that over that period, the Nebraska Law Review had little apparent impact upon published opinions of the Nebraska Supreme Court whether measured quantitatively or qualitatively. In response to that finding, I made a detailed suggestion about how that law review might become more valuable to judges and practitioners. See Richard G. Kopf, Do Judges Read the Review? A Citation-Counting Study of the Nebraska Law Review and the Nebraska Supreme Court, 1972–1996, 76 Neb. L. Rev. 710, 734-736 (1997).  Stripped of the details (which can be found in the article), I suggested the creation of an editorial partnership between student law review editors and judges whereby judges might play a much more significant role in the selection of some fixed percentage of the articles published each year. I continue to think that is a good way to bridge the practicality gap.


*Professor Michael Dorf has written a particularly pointed critique of Judge Edward’s essay. See Michael Dorf, Judge Harry Edwards Is Still Unimpressed With Legal Scholarship, Dorf on Law (December 15, 2014). You should read it.

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