Frank H. Easterbrook
Encyclopedia
Frank Hoover Easterbrook (born 1948) is the Chief Judge of the United States Court of Appeals for the Seventh Circuit
. He has been Chief Judge since November 2006, and has been a judge on the court since 1985. Easterbrook is noted for his use of economic analysis of law
, his legalist
approach to judicial interpretation, for his clear writing style, and for being one of the most prolific judges of his generation. Easterbrook is one of the most cited appellate judges in America.
on September 3, 1948, the son of Vimy and George Easterbrook. He is the older brother of author Gregg Easterbrook
and of Neil, an English professor at Texas Christian University
. Easterbrook attended Kenmore West High School in Tonawanda, New York
, where he was the classmate of Wolf Blitzer
; the two were good friends and were the leads of the KWHS' rendition of The Diary of Anne Frank. He attended Swarthmore College
, where he was elected to Phi Beta Kappa and received his bachelor's degree
with high honors. He received his Juris Doctor
degree from the University of Chicago Law School
(where he was an editor of the law review
with Douglas H. Ginsburg
and a member of the Order of the Coif
) in 1973, and then clerked for Judge Levin Hicks Campbell
on the First Circuit
.
In 1974, along with Danny Boggs and Robert Reich
, he joined the Solicitor General
's office as an Assistant to the Solicitor General, and was promoted in 1978 to Deputy Solicitor General of the United States. The solicitor general at the time was Robert Bork
, and Easterbrook has reminisced that when he joined the Solicitor General's office, "The Washington Post
noted that around the same time the SG's Office had hired three lawyers either fresh from clerkships or lacking the customary appellate experience. None of us had clerked on the Supreme Court. The Post concluded that good lawyers were no longer willing to work for the SG and attributed this to Bork's role in firing
Archibald Cox
as Watergate special prosecutor. The paper thought that dark days lay ahead for the Office with a second-rate staff. The three bottom-of-the-barrel selections were Robert Reich
(later Secretary of Labor in the Clinton Administration), Danny Boggs (now Chief Judge of the Sixth Circuit), and me." Easterbrook was considered "one of the very top advocates appearing before the Supreme Court in his days at the bar."
Easterbrook joined the faculty of the University of Chicago Law School
in 1978 (and is still a senior lecturer there today), and was a principal at Lexecon from 1980 until his judicial appointment. Easterbrook argued 20 cases before the Supreme Court while in the Solicitor General's office and in private practice, including several landmark antitrust
cases.
in August 1984 to a new seat created by 98 Stat. 333, 346; the U.S. Senate
did not act on his nomination that year, and he was re-nominated in Reagan's second term on February 25, 1985. He was confirmed by the Senate on April 3, 1985, and received his commission the next day. The American Bar Association
gave Easterbrook a low "qualified/not qualified" rating, presumably due to his youth and relative inexperience. In 2001, this rating was claimed by the George W. Bush administration
as evidence of liberal bias in the ABA in its announcement that it would no longer confer with the ABA in selecting judicial nominees.
Among Chief Judge Easterbrook's most prominent opinions are:
Easterbrook attempts to make difficult legal issues more readily understandable through incisive and vivid writing. As a young judge in one of his early opinions, Kirchoff v. Flynn, 786 F.2d 320 (CA7 1986), a lawsuit over an arrest for feeding pigeons in a park, Easterbrook used such language as "trundled to the squadrol" to describe an arrest; and states of the pigeon-feeder that she "will never be confused with the 30th Earl of Mar, whose hobby was kicking pigeons." He describes a controversy over whether a police officer, or the plaintiff's own bird, had attacked the plaintiff with these words: "[Plaintiff] says that he was clobbered by a pair of handcuffs; [the officer] maintains that the [plaintiffs]' red macaw drew the blood when it landed on [plaintiff]'s head during the fracas and started pecking." In a footnote, Easterbrook added "Predatory birds rarely attack large animals whose eyes they can see, 11 Harv.Med. School Health Letter 8 (Feb.1986), and perhaps William's eyes got distracted, to his macaw's glee." This serves as an example of Easterbrook's sophisticated deftness with language and breadth of knowledge. This deftness sometimes, however, results in passages from his opinions that require dictionaries in order for a layman to understand, such as in Frantz v. U.S. Powerlifting Federation, 836 F.2d 1063 (7th Cir. 1987), where he wrote, "The absence of ineluctable answers does not imply the privilege to indulge an unexamined gestalt."
University of Chicago Law School
Dean Saul Levmore
has stated that "Easterbrook is an important influence on legal education through his judicial opinions. Course after law school course has changed for the better as Judge Easterbrook’s opinions have made their way into the curriculum. So long as he decides cases, and decides them in a way that cuts to the heart of an issue with such skill and pressure, no area of law can be dull."
Easterbrook is particularly demanding during oral argument, where he has a reputation as "hard-nosed and demanding." In Schlessinger v. Salimes (1996), for example, he characterized the plaintiff's arguments as "goofy" and "nutty" before issuing a rule to show cause why the appellant and lawyer should not be sanctioned for a frivolous appeal. His demeanor has won him enemies in the bar. In 1994, the Chicago Council of Lawyers published an "evaluation" of the Seventh Circuit that evaluated all the judges and the court's procedures in general, but notably focused extensively on only two: Easterbrook and then-chief judge Richard Posner
. The evaluation of Easterbrook contains an unusual number of grievances; and the Council did not specify authorship, so the criticism is anonymous. In a section devoted to Easterbrook's judicial demeanor, the report claims he "has consistently displayed a temperament that is improper for a Circuit Judge. While Judge Easterbrook has many good qualities, there is a widespread belief that he is arrogant and intolerant with those who do not match his own intellectual level. This problem seriously interferes with the performance of his duties." The report continued to state Easterbrook "has been resoundingly and repeatedly criticized as being extremely rude to attorneys at oral argument" and that "some attorneys" said that due to the judge's demeanor they and their clients did not feel they got a fair hearing. The Council pointed to another opinion, Kale v. Obuchowski, which derided a lawyer's argument as "pettifoggery" and concluded "This is a frivolous, doomed and sanctionable appeal." The Council argued that even if the lawyer's conduct was sanctionable, "the language chosen does not enhance the administration of justice."
However, this review by the Council was never repeated, lending partial support to the defenders of Easterbrook and Posner that the report was an opportunity for anonymous venting by lawyers who were unhappy with the results of Seventh Circuit decisions, in no small part thanks to the decisions of Reagan appointees Easterbrook and Posner. Posner has recently commented about the report, "You have here some anonymous people who are talking to the Chicago Council of Lawyers. How much credence should we put on these people? They can be sore losers. They can be crybabies."
Easterbrook became Chief Judge of the Seventh Circuit in 2006. He is a member of the Judicial Conference of the United States
and head of the Judicial Council
for the Seventh Circuit.
, particularly the 1991 book The Economic Structure of Corporate Law, which he co-authored with Daniel Fischel
. Easterbrook's article The Proper Role of a Target's Management in Responding to a Tender Offer, 94 Harv. L. Rev. 1161 (1981) (also co-authored with Fischel) is the most heavily cited corporate law article in legal scholarship. Easterbrook has also written articles on antitrust law and judicial interpretation
, including Abstraction and Authority, 59 U. Chi. L. Rev. 349 (1992); Statutes' Domains, 50 U. Chi. L. Rev. 533 (1983); and Textualism and the Dead Hand, 66 Geo. Wash. L. Rev. 1119 (1998).
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United States Court of Appeals for the Seventh Circuit
The United States Court of Appeals for the Seventh Circuit is a federal court with appellate jurisdiction over the courts in the following districts:* Central District of Illinois* Northern District of Illinois...
. He has been Chief Judge since November 2006, and has been a judge on the court since 1985. Easterbrook is noted for his use of economic analysis of law
Law and economics
The economic analysis of law is an analysis of law applying methods of economics. Economic concepts are used to explain the effects of laws, to assess which legal rules are economically efficient, and to predict which legal rules will be promulgated.-Relationship to other disciplines and...
, his legalist
Legalism (Western philosophy)
Legalism, in the Western sense, is an approach to the analysis of legal questions characterized by abstract logical reasoning focusing on the applicable legal text, such as a constitution, legislation, or case law, rather than on the social, economic, or political context...
approach to judicial interpretation, for his clear writing style, and for being one of the most prolific judges of his generation. Easterbrook is one of the most cited appellate judges in America.
Early career
Easterbrook was born in Buffalo, New YorkBuffalo, New York
Buffalo is the second most populous city in the state of New York, after New York City. Located in Western New York on the eastern shores of Lake Erie and at the head of the Niagara River across from Fort Erie, Ontario, Buffalo is the seat of Erie County and the principal city of the...
on September 3, 1948, the son of Vimy and George Easterbrook. He is the older brother of author Gregg Easterbrook
Gregg Easterbrook
Gregg Edmund Easterbrook is an American writer, lecturer, and a senior editor of The New Republic. His articles have appeared in Slate, The Atlantic Monthly, The New York Times, The Washington Post, The Los Angeles Times, Reuters, Wired, and Beliefnet. In addition, he was a fellow at the...
and of Neil, an English professor at Texas Christian University
Texas Christian University
Texas Christian University is a private, coeducational university located in Fort Worth, Texas, United States and founded in 1873. TCU is affiliated with, but not governed by, the Disciples of Christ...
. Easterbrook attended Kenmore West High School in Tonawanda, New York
Tonawanda (town), New York
Tonawanda is a town in Erie County, New York, United States. As of the 2000 census, the town had a population of 78,155. The town is at the north border of the county and is the northern suburb of Buffalo...
, where he was the classmate of Wolf Blitzer
Wolf Blitzer
Wolf Isaac Blitzer is an American journalist who has been a CNN reporter since 1990. Blitzer is currently the host of the newscast The Situation Room and was the host of the Sunday talk show Late Edition until it was discontinued on January 11, 2009...
; the two were good friends and were the leads of the KWHS' rendition of The Diary of Anne Frank. He attended Swarthmore College
Swarthmore College
Swarthmore College is a private, independent, liberal arts college in the United States with an enrollment of about 1,500 students. The college is located in the borough of Swarthmore, Pennsylvania, 11 miles southwest of Philadelphia....
, where he was elected to Phi Beta Kappa and received his bachelor's degree
Bachelor's degree
A bachelor's degree is usually an academic degree awarded for an undergraduate course or major that generally lasts for three or four years, but can range anywhere from two to six years depending on the region of the world...
with high honors. He received his Juris Doctor
Juris Doctor
Juris Doctor is a professional doctorate and first professional graduate degree in law.The degree was first awarded by Harvard University in the United States in the late 19th century and was created as a modern version of the old European doctor of law degree Juris Doctor (see etymology and...
degree from the University of Chicago Law School
University of Chicago Law School
The University of Chicago Law School was founded in 1902 as the graduate school of law at the University of Chicago and is among the most prestigious and selective law schools in the world. The U.S. News & World Report currently ranks it fifth among U.S...
(where he was an editor of the law review
University of Chicago Law Review
The University of Chicago Law Review is a law journal published by the University of Chicago Law School, and was established in 1933. From 1942 through 1945 the review was published by the faculty, due to World War II. Prominent former student members have included Judge Abner J...
with Douglas H. Ginsburg
Douglas H. Ginsburg
Douglas Howard Ginsburg is a judge on the United States Court of Appeals for the District of Columbia Circuit. He was appointed to this court in October 1986 by President Ronald Reagan. He served as its Chief Judge from July 16, 2001 until February 10, 2008...
and a member of the Order of the Coif
Order of the Coif
The Order of the Coif is an honor society for United States law school graduates. A student at an American law school who earns a Juris Doctor degree and graduates in the top 10 percent of his or her class is eligible for membership if the student's law school has a chapter of the...
) in 1973, and then clerked for Judge Levin Hicks Campbell
Levin Hicks Campbell
Levin Hicks Campbell is an American federal appellate judge, serving on the United States Court of Appeals for the First Circuit in Boston....
on the First Circuit
United States Court of Appeals for the First Circuit
The United States Court of Appeals for the First Circuit is a federal court with appellate jurisdiction over the district courts in the following districts:* District of Maine* District of Massachusetts...
.
In 1974, along with Danny Boggs and Robert Reich
Robert Reich
Robert Bernard Reich is an American political economist, professor, author, and political commentator. He served in the administrations of Presidents Gerald Ford and Jimmy Carter and was Secretary of Labor under President Bill Clinton from 1993 to 1997....
, he joined the Solicitor General
United States Solicitor General
The United States Solicitor General is the person appointed to represent the federal government of the United States before the Supreme Court of the United States. The current Solicitor General, Donald B. Verrilli, Jr. was confirmed by the United States Senate on June 6, 2011 and sworn in on June...
's office as an Assistant to the Solicitor General, and was promoted in 1978 to Deputy Solicitor General of the United States. The solicitor general at the time was Robert Bork
Robert Bork
Robert Heron Bork is an American legal scholar who has advocated the judicial philosophy of originalism. Bork formerly served as Solicitor General, Acting Attorney General, and judge for the United States Court of Appeals for the District of Columbia Circuit...
, and Easterbrook has reminisced that when he joined the Solicitor General's office, "The Washington Post
The Washington Post
The Washington Post is Washington, D.C.'s largest newspaper and its oldest still-existing paper, founded in 1877. Located in the capital of the United States, The Post has a particular emphasis on national politics. D.C., Maryland, and Virginia editions are printed for daily circulation...
noted that around the same time the SG's Office had hired three lawyers either fresh from clerkships or lacking the customary appellate experience. None of us had clerked on the Supreme Court. The Post concluded that good lawyers were no longer willing to work for the SG and attributed this to Bork's role in firing
Saturday night massacre
The "Saturday Night Massacre" was the term given by political commentators to U.S. President Richard Nixon's executive dismissal of independent special prosecutor Archibald Cox, and the resignations of Attorney General Elliot Richardson and Deputy Attorney General William Ruckelshaus on October 20,...
Archibald Cox
Archibald Cox
Archibald Cox, Jr., was an American lawyer and law professor who served as U.S. Solicitor General under President John F. Kennedy. He became known as the first special prosecutor for the Watergate scandal. During his career, he was a pioneering expert on labor law and also an authority on...
as Watergate special prosecutor. The paper thought that dark days lay ahead for the Office with a second-rate staff. The three bottom-of-the-barrel selections were Robert Reich
Robert Reich
Robert Bernard Reich is an American political economist, professor, author, and political commentator. He served in the administrations of Presidents Gerald Ford and Jimmy Carter and was Secretary of Labor under President Bill Clinton from 1993 to 1997....
(later Secretary of Labor in the Clinton Administration), Danny Boggs (now Chief Judge of the Sixth Circuit), and me." Easterbrook was considered "one of the very top advocates appearing before the Supreme Court in his days at the bar."
Easterbrook joined the faculty of the University of Chicago Law School
University of Chicago Law School
The University of Chicago Law School was founded in 1902 as the graduate school of law at the University of Chicago and is among the most prestigious and selective law schools in the world. The U.S. News & World Report currently ranks it fifth among U.S...
in 1978 (and is still a senior lecturer there today), and was a principal at Lexecon from 1980 until his judicial appointment. Easterbrook argued 20 cases before the Supreme Court while in the Solicitor General's office and in private practice, including several landmark antitrust
Antitrust
The United States antitrust law is a body of laws that prohibits anti-competitive behavior and unfair business practices. Antitrust laws are intended to encourage competition in the marketplace. These competition laws make illegal certain practices deemed to hurt businesses or consumers or both,...
cases.
Nomination and judicial career
Easterbrook was nominated to the court by Ronald ReaganRonald Reagan
Ronald Wilson Reagan was the 40th President of the United States , the 33rd Governor of California and, prior to that, a radio, film and television actor....
in August 1984 to a new seat created by 98 Stat. 333, 346; the U.S. Senate
United States Senate
The United States Senate is the upper house of the bicameral legislature of the United States, and together with the United States House of Representatives comprises the United States Congress. The composition and powers of the Senate are established in Article One of the U.S. Constitution. Each...
did not act on his nomination that year, and he was re-nominated in Reagan's second term on February 25, 1985. He was confirmed by the Senate on April 3, 1985, and received his commission the next day. The American Bar Association
American Bar Association
The American Bar Association , founded August 21, 1878, is a voluntary bar association of lawyers and law students, which is not specific to any jurisdiction in the United States. The ABA's most important stated activities are the setting of academic standards for law schools, and the formulation...
gave Easterbrook a low "qualified/not qualified" rating, presumably due to his youth and relative inexperience. In 2001, this rating was claimed by the George W. Bush administration
George W. Bush administration
The presidency of George W. Bush began on January 20, 2001, when he was inaugurated as the 43rd President of the United States of America. The oldest son of former president George H. W. Bush, George W...
as evidence of liberal bias in the ABA in its announcement that it would no longer confer with the ABA in selecting judicial nominees.
Among Chief Judge Easterbrook's most prominent opinions are:
- American Booksellers Ass'n v. HudnutAmerican Booksellers v. HudnutAmerican Booksellers v. Hudnut, 771 F.2d 323 , aff'd mem., 475 U.S. 1001 , was a 1985 court case that challenged the constitutionality of the Antipornography Civil Rights Ordinance, as enacted in Indianapolis, Indiana.- Background :...
- Kirchoff v. Flynn
- In re Erickson
- In re Sinclair
- United States v. Van Fossan
- Miller v. South Bend
- United States v. Marshall
Easterbrook attempts to make difficult legal issues more readily understandable through incisive and vivid writing. As a young judge in one of his early opinions, Kirchoff v. Flynn, 786 F.2d 320 (CA7 1986), a lawsuit over an arrest for feeding pigeons in a park, Easterbrook used such language as "trundled to the squadrol" to describe an arrest; and states of the pigeon-feeder that she "will never be confused with the 30th Earl of Mar, whose hobby was kicking pigeons." He describes a controversy over whether a police officer, or the plaintiff's own bird, had attacked the plaintiff with these words: "[Plaintiff] says that he was clobbered by a pair of handcuffs; [the officer] maintains that the [plaintiffs]' red macaw drew the blood when it landed on [plaintiff]'s head during the fracas and started pecking." In a footnote, Easterbrook added "Predatory birds rarely attack large animals whose eyes they can see, 11 Harv.Med. School Health Letter 8 (Feb.1986), and perhaps William's eyes got distracted, to his macaw's glee." This serves as an example of Easterbrook's sophisticated deftness with language and breadth of knowledge. This deftness sometimes, however, results in passages from his opinions that require dictionaries in order for a layman to understand, such as in Frantz v. U.S. Powerlifting Federation, 836 F.2d 1063 (7th Cir. 1987), where he wrote, "The absence of ineluctable answers does not imply the privilege to indulge an unexamined gestalt."
University of Chicago Law School
University of Chicago Law School
The University of Chicago Law School was founded in 1902 as the graduate school of law at the University of Chicago and is among the most prestigious and selective law schools in the world. The U.S. News & World Report currently ranks it fifth among U.S...
Dean Saul Levmore
Saul Levmore
Saul Levmore is the William B. Graham Distinguished Service Professor of Law, and former Dean of the University of Chicago Law School. He joined the faculty of the law school in 1998 and became Dean in 2001. In March, 2009, Levmore stated that he would step down as Dean and return to the faculty...
has stated that "Easterbrook is an important influence on legal education through his judicial opinions. Course after law school course has changed for the better as Judge Easterbrook’s opinions have made their way into the curriculum. So long as he decides cases, and decides them in a way that cuts to the heart of an issue with such skill and pressure, no area of law can be dull."
Easterbrook is particularly demanding during oral argument, where he has a reputation as "hard-nosed and demanding." In Schlessinger v. Salimes (1996), for example, he characterized the plaintiff's arguments as "goofy" and "nutty" before issuing a rule to show cause why the appellant and lawyer should not be sanctioned for a frivolous appeal. His demeanor has won him enemies in the bar. In 1994, the Chicago Council of Lawyers published an "evaluation" of the Seventh Circuit that evaluated all the judges and the court's procedures in general, but notably focused extensively on only two: Easterbrook and then-chief judge Richard Posner
Richard Posner
Richard Allen Posner is an American jurist, legal theorist, and economist who is currently a judge on the United States Court of Appeals for the Seventh Circuit in Chicago and a Senior Lecturer at the University of Chicago Law School...
. The evaluation of Easterbrook contains an unusual number of grievances; and the Council did not specify authorship, so the criticism is anonymous. In a section devoted to Easterbrook's judicial demeanor, the report claims he "has consistently displayed a temperament that is improper for a Circuit Judge. While Judge Easterbrook has many good qualities, there is a widespread belief that he is arrogant and intolerant with those who do not match his own intellectual level. This problem seriously interferes with the performance of his duties." The report continued to state Easterbrook "has been resoundingly and repeatedly criticized as being extremely rude to attorneys at oral argument" and that "some attorneys" said that due to the judge's demeanor they and their clients did not feel they got a fair hearing. The Council pointed to another opinion, Kale v. Obuchowski, which derided a lawyer's argument as "pettifoggery" and concluded "This is a frivolous, doomed and sanctionable appeal." The Council argued that even if the lawyer's conduct was sanctionable, "the language chosen does not enhance the administration of justice."
However, this review by the Council was never repeated, lending partial support to the defenders of Easterbrook and Posner that the report was an opportunity for anonymous venting by lawyers who were unhappy with the results of Seventh Circuit decisions, in no small part thanks to the decisions of Reagan appointees Easterbrook and Posner. Posner has recently commented about the report, "You have here some anonymous people who are talking to the Chicago Council of Lawyers. How much credence should we put on these people? They can be sore losers. They can be crybabies."
Easterbrook became Chief Judge of the Seventh Circuit in 2006. He is a member of the Judicial Conference of the United States
Judicial Conference of the United States
The Judicial Conference of the United States, formerly known as Conference of Senior Circuit Judges, was created by the United States Congress in 1922 with the principal objective of framing policy guidelines for administration of judicial courts in the United States...
and head of the Judicial Council
Judicial council (United States federal courts)
Judicial councils are the disciplinary panels of the United States federal courts. They deal with matters of discipline for United States federal judges. Each judicial panel has the jurisdiction covered by a United States court of appeals...
for the Seventh Circuit.
Academic work
Easterbrook's academic work focuses on corporate lawCorporate law
Corporate law is the study of how shareholders, directors, employees, creditors, and other stakeholders such as consumers, the community and the environment interact with one another. Corporate law is a part of a broader companies law...
, particularly the 1991 book The Economic Structure of Corporate Law, which he co-authored with Daniel Fischel
Daniel Fischel
Daniel R. Fischel is the emeritus Lee and Brena Freeman Professor of Law and Business and former Dean of University of Chicago Law School, and a co-founder of Lexecon...
. Easterbrook's article The Proper Role of a Target's Management in Responding to a Tender Offer, 94 Harv. L. Rev. 1161 (1981) (also co-authored with Fischel) is the most heavily cited corporate law article in legal scholarship. Easterbrook has also written articles on antitrust law and judicial interpretation
Judicial interpretation
Judicial interpretation is a theory or mode of thought that explains how the judiciary should interpret the law, particularly constitutional documents and legislation...
, including Abstraction and Authority, 59 U. Chi. L. Rev. 349 (1992); Statutes' Domains, 50 U. Chi. L. Rev. 533 (1983); and Textualism and the Dead Hand, 66 Geo. Wash. L. Rev. 1119 (1998).
External links
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