Thursday, December 5, 2013


Are you becoming more open, more accepting of different views? Many years ago, I thought people saw the world pretty much the same as I did. Then I heard the term "world view" and learned about personality types and it dawned on me that eccentricity appeals to me nearly as much as wisdom.

For years, I've enjoyed reading opinions written by Richard Posner of the U.S. Court of Appeals for the 7th Circuit. I often don't agree with his conclusion, but I like getting there. 

And then, several months ago, when I mentioned him, a friend pretty much said he's out there. In fact, she said, critically and not with admiration, that he's the most reversed federal appeals court judge. I don't know if that's true, but ever since, I consider his opinions with closer skepticism. I wonder if my friend has any idea how influential she is.

Today I read one of his recent decisions. He considered the meaning of this phrase in an Illinois statute: "[D]eeds, mortgages, powers of attorney, and other instruments relating to or affecting the title to real estate in this state, shall be recorded in the county in which such real estate is situated." 

What do you think it means -- that if someone gives you an Illinois mortgage, you must record it, or if you want to record it and obtain the protections of the statute, you may do so? I asked my most influential friend, Karen, and she said you may. As it turns out, she and Judge Posner agree. 

Here's what he said: “[S]uppose a department store posts the following notice: ’All defective products must be returned to the fifth floor counter for refund.’ Obviously this is not a command that defective products be returned; the purchaser is free to keep a defective product, throw it out, or give it as a present to his worst friend. There’s an implicit ‘if’ in the command: If you want to return a product and get a refund, here’s where you have to return it.”  The statute similarly may mean that if you want to record your property interest you must do so in the county in which the property is located. In the context, that is the better meaning.

I had to Google "shall." One of the first hits was a law professor's blog, where he said "shall" is the most misused word in legal terminology. 

As I considered this, I thought of one of my pet peeves. I hate it when someone says, "We can't do that," as in "Would you take $50 instead of your stated $55 price?" and they answer, "Oh, no, we can't do that." Or, "How about if I send you an email authorizing that?" and they answer, "Oh no, we can't accept an email; we need a fax or a letter." I want to say, "Yes you can; you just don't want to or you aren't willing to." 

Virginia says, "We lie, we're used to lying, that's what people do."

I'd like to disagree. They're not lying when they say "can't." They're just using a different definition from my definition of the word "can't."

Although my friend has prompted me to be more critical of Posner opinions, she may have helped me like them even more. I think Oscar Wilde is credited for saying, "Whenever people agree with me I always feel I must be wrong." If Judge Posner is, in fact, the most reversed appellate court judge, then that may be all the more reason to revere him.


  1. Judge Posner and I have discussed the use of the word "shall" many times over coffee. He and I are tight, though last time he asked if I'd meet him at Starbucks I told him, "I can't, I have more important things to do than have coffee with my judge friends".

  2. Your cousin Mark comments that Posner is actually not so often reversed, but is certainly the most often cited judge.

  3. This brought to memory a sixth grade teacher, Fay Jay. When one asked, "Can I go to the bathroom?" she would always say, "Well I don't know. CAN you?