by John Otrompke
I was researching False Claims Act cases recently, and I came across a strange pro se case called US ex rel Lu v. Ou, 368 F.3d 773 (CA 7 2004). I was struck at first by what seems to me to be the unnecessarily mean and biased comments of the judge who authored the opinion.
I also found the case a little troubling because some reflection brought me to the theory that judges don’t use rules to decide cases; rather, they use rules to justify or explain results which they have already arrived at, based on unspoken a priori considerations.
Can any reader help me understand why the opinion was written the way it was?
The ultimate issue in the case is simple enough: a pro se litigant may not bring a qui tam action, because those lawsuits are brought on behalf of the government, and a pro se litigant who is not an attorney cannot represent anybody else.
Nor am I writing to quarrel with that rule; although I will note that it is not to be found in the text of the statute, but is instead part of that federal ‘Common Law.’ (1)
What I don’t understand is this: having stated the simple principle that controlled the outcome (no pro se qui tam actions), the judge didn’t stop there, but went on to conclude the opinion by noting that “the complaint is incoherent, even crazy...Lu describes himself as homeless and without a telephone.” Lu at 775.
Having already resolved the case in such an admirably economical manner, why add such an unnecessary, almost baroque flourish, as to suggest that the complaint itself is insane? Is the judge simply trying to cause society to shun the litigant?
A Worthy Oeuvre of Valuable and Diverse Scholarship
The Seventh Circuit judge who authored the opinion was, of course, Senior Lecturer Richard Posner, who retired last weekend. I like Posner’s work: I read his 1994 book, ‘Sex and Reason,’ when I was fresh out of law school, and it made quite an impression on me, especially his development of the idea of companionate romantic relationships (a notion some people take for granted today).
The book struck me as an excellent example of what good scholarship is supposed to be: an analytic development grounded in history, not a parochial work of legal research. I found its libertarian bent quite divorced from the neoconservative reputation Posner and his ‘law and economics’ theories suffer from.
Posner supported unprivileged notions like LGBTQ freedom and equality long before they were accepted by the Supreme Court. His panel was also among the first to recognize an individual right under the Second Amendment to bear arms in public. Over the years, I have also respected some of his other opinions, such as one involving the right of Syrian refugees to settle in Indiana, notwithstanding state law to the contrary.
Regarding Posner’s review of Melville’s ‘Billy Budd’ (2), on the other hand, I might offer a pithy comment some day, after the piquancy, poignancy and puissance of this bittersweet moment have passed.
But back to the case under discussion. As a judge, journalists have said that Posner’s “acerbic wit attracted an almost cult-like following within legal circles.” Fun is fun, but how does Posner know that Mr. Lu’s complaint is crazy?
The word ‘crazy’ carries an implication of insanity, today thought to be a more or less precise scientific category. But is Posner a medical doctor? He doesn’t refer to any particular things in the qui tam case that show that Mr. Lu’s complaint is crazy. What kind of insanity does Posner think Mr. Lu’s complaint suffers from? Is it in the Diagnostic and Statistical Manual?
And even if Mr. Lu’s complaint was crazy, why should Posner mention it? I thought most judges are usually eager to be polite to innocent pro se civil litigants, so that those who lose won’t think that the government despises them.
An Inappropriate Bully Pulpit for Neoliberal Capitalism
But the alleged ‘craziness’ of the complaint isn’t the only gibe Posner takes at Mr. Lu. The work of the appeal being done, why does Posner also make a point of mentioning Mr. Lu’s homelessness and his unconventional lack of a telephone? Does Posner, said to be a free market partisan, think that a person has to be insane to be homeless and without a phone in the United States?
My own feeling is that in deciding this case, Posner simply saw and seized an opportunity (any opportunity) to prop up his laissez-faire economic theories (which have wound up getting less airplay over the decades than everyone expected).
But there is another theory: journalists have also quoted Posner as saying that he believes “that judges should focus on the right and wrong in every case." By focusing on what he perceives as the insanity of Mr. Lu’s complaint, is Posner just ensuring that the law fits the facts in the case at hand?
If it is, it presents another problem. After 30 years, the Reagan-appointed Posner (and here he acts like a Republican party loyalist) has retired, just in time to let Donald Trump try to appoint his successor. But if federal appeals courts scour the facts of cases to make sure the rules they use are correct, then are we a society governed not by laws- but by what? By whom?
1 I do, however, note as a counter-example a New York City law which allows private citizens to bring actions against automobile drivers for curbside idling- writing their own tickets, as it were, apparently without needing an attorney.
2 “Law and Literature: A Relation Reargued,” 72 Va. L. Rev. 1351 (November 1986).
