Affirmative duties and Judges'Duties: United Satates v. Stockberger (original) (raw)

After twenty-four years of judicial experience, Judge Richard Posner contrasted the "aggressive judge" with the "modest judge" in his 2005 Foreword in the Harvard Law Review. 1 When Professor Posner became Judge Posner in 1981, anyone familiar with his ambitious, trailblazing academic achievements would have expected the bold professor to become an aggressive judge. One might have imagined the Seventh Circuit's slip opinions being transformed into the Journal of Legal Studies, as he would bring an economic perspective to every reach of the law. Instead, Judge Posner brought measured judicial restraint to many of his cases. One recent example is Stockberger v. United States, 2 in which Judge Posner had an opportunity to put his academic theories into practice. Instead, he heeded his own call for judicial restraint by not straying far from state precedent. In this brief tribute to Judge Posner, I commend this modesty but suggest that, in similar cases, he might reconcile his desire for restraint with his academic theories by engaging in bolder modesty and more aggressive deference. Specifically, he might establish supermajority voting rules in diversity cases that ask federal judges to predict the direction of state law. On March 24, 1999, Maurice Stockberger, a diabetic employed at the federal prison in Terre Haute, Indiana, announced to his colleagues that he was not feeling well. A colleague described him as "aggravated and angry, and adamant about going home." 3 His colleagues had witnessed several of his hypoglycemic episodes before and knew that he would become "hostile, suspicious, unresponsive, agitated," and in denial of his medical problem. 4 Many of these colleagues were medically trained and recognized that Stockberger was experiencing another of his hypoglycemic episodes that day. 5