Judge Posner Slams Courts' Use Of 'Stale, Opaque' Jargon via Law360

Posted on 05-23-2016 by
Tags: Industry Insights & Trends , legal writing , Trending News & Topics , LIT , Law360 , SCOTUS

The article below has been republished in full courtesy of Law360, written by Daniel Siegal.

The opinionated Seventh Circuit Judge Richard Posner on Tuesday weighed in against the use of legal jargon and convoluted rhetoric, even by the U.S. Supreme Court, using a concurring opinion affirming a Wisconsin man's jury conviction for selling prescription drug ingredients on the internet to slam “stale, opaque” legal writing.

Judge Posner, concurring in a three-judge panel’s decision to affirm the conviction of Wisconsin resident Shontay Dessart on charges of selling the ingredients of prescription drugs over the internet, agreed that Dessart could not escape his conviction by arguing that a U.S. Food and Drug Administration investigator lacked probable cause.

Where Judge Posner diverged from his colleagues, however, was in breaking down for examination the “verbal formulas” the majority used to reach its opinions. The judge wrote that he did not criticize his colleagues, calling the jargon “common, orthodox, even canonical” but also breaking down several passages describing the applicable case law as “ripe for re-examination.”

“I don’t disagree with the decision to affirm the district court. I disagree merely with the rhetorical envelope in which so many judicial decisions are delivered to the reader,” Judge Posner Wrote. “Judicial opinions are littered with stale, opaque, confusing jargon. There is no need for jargon, stale or fresh. Everything judges do can be explained in straightforward language — and should be.”

Dessart was indicted in April 2012 for running an illegal online "pharmacy" out his home in Reedsville, Wisconsin, www.EDS-Research.com, according to Tuesday's opinion. Dessart was selling human growth hormone, as well as the active ingredients for drugs Viagra, Cialis and Levitra, through the website, which carried a disclaimer that the drugs were "for research only," according to the ruling. 

Although Dessart pled guilty to two misdemeanor violations of the Food Drug and Cosemtic Act, before sentecing, he fired his attorney, and representing himself pro per, withdrew his guilty plea. The case then proceeded to trial, and he was convicted on felony charges under the act, according to the ruling. 

Dessart appealed to the Seventh Circuit, arguing that the FDA investigator who built his case had lacked probably cause for search warrants used to find the chemicals he was selling, but on Tuesday, the majority of the Seventh Circuit panel wrote that Dessart had lied to the court, the investigator did not, and there was "ample probable cause" for the warrant, affirming his conviction. 

In the past, Judge Posner has developed a reputation for being direct, and perhaps outspoken, in his writings, from shredding the Bluebook as “560 pages of rubbish” in a March article to calling an attorney’s bid to duck sanctions for a false sexual assault allegation “pathetic” in a December ruling.

Judge Posner even defended his frankness to Law360 last July, after attracting attention for a column he wrote for Slate in June 2015. In the column, he weighed in on the U.S. Supreme Court’s holding on same-sex marriage in Obergefell v. Hodges, praising the outcome and calling the four dissents “very weak.” He reserved his harshest words for Chief Justice John Roberts’ “heartless” dissent in the case, dismissing parts of it as “nonsense.”

“I think lower court judges are particularly hesitant to criticize the Supreme Court because the notion is they are our bosses, and they might take revenge on us,” Judge Posner told Law360. “I don’t think that’s true, and I don’t think they’re that petty. Put another way, I don’t think they’re concerned with us, the little people.”

In his Tuesday concurrence, Judge Posner again stood up for his right to criticize the nation’s high court, pointing out that much of the legal passages he had found fault with in his concurrence were taken from Supreme Court rulings.

“That may seem impertinence on my part, forcing me to invoke the old proverb that ‘a cat may look at a king,’ one meaning of which is that an inferior is or should be allowed to criticize a superior,” Judge Posner wrote.

Circuit Judges Richard Posner, Frank H. Easterbrook and Diane S. Sykes sat on the panel that issued Tuesday’s opinion.

The government is represented by U.S. Attorney, James L. Santelle, Assistant U.S. Attorney Matthew L. Jacobs and Clint Narver of the Food & Drug Administration.

Dessart is represented by Timothy D. Elliott, Kaitlyn Anne Wild and Jordan R. Franklin of Rathje & Woodward LLC.

The case is United States v. Shontay Dessart, case number 14-2686, in the U.S. Court of Appeals for the Seventh Circuit.

The above article has been republished in full and is courtesy of Law360. For the latest breaking news and analysis on energy industry legal issues, visit Law360 today.


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