Judge Richard Posner of the U.S. Court of Appeals for the Seventh Circuit abruptly announced his retirement on Sept. 4, 2017. In a New York Times interview, he said that he “awoke from a slumber of 35 years” to realize “that people without lawyers are mistreated by the legal system” and wanted to do something about it. An appellate judge for 35 years, he says that he changed his priorities as a judge from being a conservative who advanced the use of economics in decision-making to one also concerned about pressing social issues such as abortion, same-sex marriage, voting rights, and discrimination in the workplace. He also now admits that he has begun to pay “very little attention to legal rules, statutes [and] constitutional provisions” in deciding “a sensible resolution” of a dispute to the extent not precluded by the U.S. Supreme Court, but that almost any Supreme Court precedent can be distinguished.
Posner says pro se parties in civil cases have “real” grievances, but the “system was treating them impatiently, dismissing their cases over technical matters.” The final straw came when the judges of the court rejected Posner’s desire to review all staff memos with recommendations for the disposition of pro se cases.
We are quite fortunate in New Jersey. Although being placed in jeopardy by funding problems, Legal Services of New Jersey as well as numerous attorney pro bono support groups have helped indigents and the less-affluent in civil matters. The Appellate Division has developed pro bono programs in which attorneys have volunteered to write briefs (the program has suffered due to the lack of funding for transcript production) and law school clinical programs provide assistance under the supervision of professors admitted to the practice of law in New Jersey.
We can debate, as courts have done, to what extent indigents should be entitled to the assistance of counsel, and to what extent taxpayers should pay the bill or attorneys may be compelled to provide legal assistance without pay. Let’s hope that our voluntary pro bono programs continue to grow and that, when back again on a full-time basis at the University of Chicago Law School, Judge Posner can inspire young attorneys to volunteer and help create new programs to assist indigents to obtain legal assistance and courts to develop more programs for their protection.