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Wednesday, March 19, 2014

Think it was his law clerks?

This Fair Labor Standards Act case turned in part on the length of time it takes workers in a poultry processing plant to don and doff protective clothing. Judge Posner conducted an experiment, described on pp. 9-10 of the majority opinion--he purchased identical equipment and video-recorded  "three members of the court's staff" taking the clothing on and off.

I guess a Posner clerkship really is a different type of clerkship.

Posted by Howard Wasserman on March 19, 2014 at 01:18 PM in Howard Wasserman | Permalink


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From Judge Wood's dissent: "I am startled, to say the least, to think that an appellate court would resolve such a dispute based on a post-argument experiment conducted in chambers by a judge. Ante at 9-10."

Posted by: Bruce Boyden | Mar 19, 2014 2:23:13 PM

As the majority noted in the opinion, Judge Posner did the same with a still photo in Sandifer, which the Supremes affirmed this term. You can see the photo of a somewhat self-satisfied looking clerk at p. 5 here:
Since he took Justice Scalia's reference to it as approval, one might have wished that the Court voice its disapproval of this practice. Whatever the clerks think of it, it seems quite disrespectful to the worker-plaintiffs, even if their claims do not prevail.

Posted by: Mark Fenster | Mar 19, 2014 4:07:30 PM

This does seem wildly inappropriate but I suppose is consistent with his notion that he is smarter than everyone else.

Posted by: MLS | Mar 19, 2014 4:23:57 PM

Judge Posner talks briefly in Reflections on Judging (p. 146) about the Sandifer photo that Mark mentioned, in the context of a lengthy critique of what Posner views as inadequate appellate records:

"These work 'clothes' were in the record, and on the theory that a picture is worth a thousand words, our opinion includes a photograph of a man (one of my law clerks), dressed in the 'clothes.' ... I think it was a help to the judges but also to the reader of the opinion to see the items of clothing or equipment that we discussed and the ensemble formed by the items. The picture helped to make the verbal description and analytic discussion intelligible."

Posted by: Jordy Singer | Mar 19, 2014 7:47:59 PM

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