Macfarlane on Posner on pro se litigants

Katherine Macfarlane (Idaho) has posted her new article, Pro Se Prisoners’ Posner Problem (Missouri Law Review, forthcoming), on SSRN. It is a review of Judge Posner’s recent self-published book, Reforming the Federal Judiciary.  Cribbing from the abstract:

This book review … is focused on what Posner deemed the book’s “most important theme”—“the need for better treatment by the federal courts of pro se litigants.” His staff attorney proposals offer the most reform potential. This review examines the assumptions underlying Posner’s desire to assist pro se litigants, including the conclusions that pro se litigants are: “very often poorly educated and/or of limited intelligence”; “ignorant of the subtleties of the law”; and “basically fairly normal people who because of bad luck, psychological problems, poor judgment, lack of family support, or other internal or environmental misfortunes, simply have great difficulty living a law-abiding life.” In examining Posner’s newfound empathy for the pro se, this review will argue that empathy is a poor proxy for meaningful institutional change, concluding that though Posner has identified unjustifiable structural inequality, he has stopped short of fixing it. If pro se litigants deserve equal treatment, then eliminate all staff attorney programs. Assign pro se cases directly to judges’ chambers, make staff attorneys law clerks, and allow the new law clerks to work directly with jurists like Richard Posner.

Macfarlane’s review lucidly points out the strengths and weaknesses of Posner’s discussion of the treatment of pro se litigants — and there are indeed many strengths and weaknesses.  The review is a good, short read for those who want a summary of Posner’s arguments — and a clear-eyed analysis of the argument’s shortcomings.

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