"... among persons within particular age groups, and the degree to which the cognitive effects of aging may, up to a point anyway, be offset by experience of life."
Wrote Judge Richard Posner, in his 1996 book “Aging and Old Age," quoted in "After Posner retired from 7th Circuit, a grim diagnosis and a brewing battle" — a new article at Reuters.
ADDED: It was a big surprise when Posner suddenly retired in 2017 — blogged here — so the additional information that surfaced because of this legal dispute is revealing. We are only learning now that at the time he had received a diagnosis of Alzheimer's disease.
From the Reuter's article:
When Posner quit the 7th Circuit after nearly 36 years on the bench with a single day’s public notice, he told the Chicago Daily Law Bulletin that “I was not getting along with the other judges because I was (and am) very concerned about how the court treats pro se litigants, who I believe deserve a better shake.”...
On Feb. 25, 2018, the judge emailed [Brian] Vukadinovich with an offer to share responsibility with him in running the center, which aimed to have representatives in all 50 states to provide pro bono legal help and behind-the-scenes advice to pro se litigants....
The center is the Posner Center of Justice for Pro Se’s (yes, with the apostrophe).
“You would receive a substantial salary in the role I envisage for you, though I can't specify salary yet because the company has as yet no money. Within weeks or perhaps days, however, the company will be reorganized as a 501(c)(3),” Posner wrote, according to an email Vukadinovich forwarded to me. “I ought to be able to raise more than $1 million through donations,” Posner continued. “I will not take any of it for myself, because my wife and I have ample savings and low expenses. I should be able to pay you at least $80,000 a year and I hope more.”
Posner wrote all that a that, 5 months after the Alzheimer's diagnosis?
Vukadinovich told me he and the judge ultimately agreed upon a salary of $120,000 a year. As it turned out, Posner found fundraising to be more difficult than expected.
In his self-published 2018 book “Helping the Helpless: Justice for Pro Se's: A Company Handbook,” Posner wrote: “My efforts to obtain donations have been strenuous, and include requests sent to almost a hundred lawyers in Chicago, but have thus far yielded only a few fruits (none in the case of my requests to those lawyers!) — not nearly enough to meet the company’s needs.”...
Jonathan Zell, who was co-executive director of the Posner Center alongside Vukadinovich [said] Posner disclosed his Alzheimer’s diagnosis to the staff early on... “He said the doctor showed him a CAT scan that showed he had Alzheimer’s, but that ‘It doesn’t affect me.’”
Zell added, “Of course it did.”
Still, he said the judge, at least in the beginning, “could put on a good show” in friendly interactions. Indeed, Posner continued to practice law in 2018....
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43 comments:
Please read the article before commenting. It is about a contracts dispute where the agreement was with an extremely eminent federal judge who was in a stage of Alzheimer's disease.
I was trying to be subtle, but you do need to read the article to comment appropriately.
"the degree to which the cognitive effects of aging may, up to a point anyway, be offset by experience of life.”
In the case of Alzheimer's, that degree is zero.
That is a very sad story. Posner is a great man by any measure and this is a sad ending to an epic career. As for the particular dispute, it’s a question of fact whether Posner was mentally competent to enter into a contract at that time, and I’m content to let the trier of fact resolve that issue.
I've updated the post so the substantive part of the article is apparent.
This is an important story about the decline of a great man.
That puts his bizarre conduct when he retired in context. I guess the answer to the question: "has Posner lost his mind?" was a very sad, "yes."
"Please read the article before commenting. "
This might be a needed addendum to all your posts.
I wonder if Altzheimers contributed in some way to his strange metamorphosis as a judge in his later years.
Nebraska federal judge Lyle E. Strom was still hearing cases at age 92. He's 97 today. A regular swimmer. His daughter was a classmate of mine at Creighton Law.
One of his last decisions was a very complicated patent case and it was affirmed.
I can't believe he went competent to incompetent that fast. But what a convenient defense lol.
Court will have to decide competency. That should be easy enough from his daily activities at the time. It's not a high bar.
But why oh why does it always seen the it's the prominent conservatives who get Alzheimer's? When old lefty cranks like Bernie Sanders and Ralph Nader seem lucid even if WRONG?
I don't like the implications.
Alzheimers is tricky. I have seen people take years to decline. In other cases, from the point where they could no longer drive safely to the time of death was only 4 months. It doesn't only affect your memory--you get agitated, angry, confused, scared. It affects your judgement. I have read that very smart, educated people hold up a little better, maybe because they have farther to fall before unable to function, but not that much better.
Battlespace prep for an Arty 25?
Sad. No winners here. How much of the claimed agreement (for compensation way above the threshold for Statute of Frauds) is in a signed writing with Posner personally, as opposed to a letter (or email?) about a project not yet begun by a shell entity with no board, no officers, no assets, no legal life to speak of?
I doubt Vukadonivich is going to win this one if the diagnosis story is true. It appears that the contract was oral, not written, and with Posner himself, not legal representation of the 501(c)(3). In any case, it is the organization that would be liable, and it appears to be bankrupt.
you know what happens, when people get old? They say things like this, about Black Men;
They Should Have Never Been Appointed To SCOTUS. “I will say that H.R. 1, our bill to have a cleaner government, we have a call for the Supreme Court to have a code of ethics. They have no code of ethics – and really? It’s the Supreme Court of the United States … and we don’t know what their ethical standards are.”
Posner's 1996 speculation that experience might compensate for decline in cognitive skill is interesting to reconsider in light of his real life 2018 scenario. "Experience" might easily be confused with reputation, an assumed competence based on decades of high accomplishment. But judgement, that ineffable ability to size up a situation and cut to the heart of a knotty problem, is something different than either reputation or experience. Once that goes, those credentials can actually prove disastrous, allowing those around one to suspend their own judgement in trusting someone who has lost his.
I'm sorry to read of Judge Posner's Altzheimer's. He was a legal titan. It's an interesting case. Based upon what's in the article, I'm inclined to think that the plaintiff will lose. Having said that, there is a whole lot of evidence that we are unaware of right now.
I'm agin agining as a tag.
The last 15 months I have been studying mathematics again- a pursuit I had in my late teens to early 20s when I realized my high school classes hadn't adequately prepared me for college calculus, and I have been doing it the same way I did it then- taking the Schaum's Outline series and working every problem inside them- I even have the original books and worksheets I did at that time, from 1985-88. What I have found is that I am somewhat slower to grasp the concepts (at least those that I have forgotten than I was when I first encountered them), but my understanding of the concepts is much deeper now at age 55 than it was at age 19, and that is the accumulation of knowledge I picked up through the years, though it is mostly just better mental discipline than I had earlier- thinking things through more completely and trying to tie it into other concepts that I am now aware of. Of course, I now have YouTube where I can get even deeper into the theory at the click of a button whenever I feel lost or just curious.
One thing I noticed when I compare my work from today to that I did 37 years ago, is that everything back then was more disorganized- almost a shotgun approach to solving a problem rather than the more methodical approach I take now. I look at the older work, and I wonder how it was I even thought to try those other routes. Have I lost that much creativity, or is it that I just don't need the shotgun approach because the concepts aren't as novel to me as they were then?
So, there is compensation for a loss of mental agility and acuity, but I don't know how far it will take me.
"I can't believe he went competent to incompetent that fast. But what a convenient defense lol."
High functioning individuals are very good at hiding the deficiencies. What looks fast is really someone reaching the point where their coping abilities suddenly fail at every turn. Posner was probably incompetent long before anyone noticed he was. I have personal experience with this process.
The aging mind is a tricky thing. My late father lost his business judgment long before anything else. Trained as a civil engineer he was still mathematically sharp until his death at 96. I was appointed conservator his estate six months or so before his death. One of the things I had to do was unwind a franchise agreement he'd entered into a year or so before his death. He'd done it all by mail and by telephone with the franchiser. Dad was in Southern California--the franchiser was in North Carolina. When I spoke with him he said Dad had seemed fully competent in all their conversations. That's probably true.
And I suspect that the retired Judge Posner seemed fully competent in his conversations with the plaintiff.
The aging mind is a tricky thing. My late father lost his business judgment long before anything else. Trained as a civil engineer he was still mathematically sharp until his death at 96. I was appointed conservator his estate six months or so before his death. One of the things I had to do was unwind a franchise agreement he'd entered into a year or so before his death. He'd done it all by mail and by telephone with the franchiser. Dad was in Southern California--the franchiser was in North Carolina. When I spoke with him he said Dad had seemed fully competent in all their conversations. That's probably true.
And I suspect that the retired Judge Posner seemed fully competent in his conversations with the plaintiff.
Most of the people involved seem sleazy to one degree or another.
How then does this contract with Posner differ from, for example, the Executive Orders issued by FJB? He’s clearly mentally incompetent, and was when he issued the EOs. Are his appointments also invalid? Does it matter whether or not those appointments needed to be, and were confirmed, by the Senate? If the appointments were invalid due to his incapacity, what about their actions in office?
No matter how much I think that the country would be much better off with a do-over of FJB’s disastrous policies across the board, I just can’t see the courts, no matter how much they agree with me about that, ordering such. But why should Posner get a break here, and not the American people. While Posner’s wife may have known of his decline, he was apparently able to hide it from everyone else fairly well. Not so with FJB. Much of the country, even the world, knew that he wasn’t mentally competent to even order ice cream by himself when he was installed as President.
It seems like the plaintiff had reason to believe Posner was still very competent.
But I can't remember if that even matters.
Who woulda known tho.
Vukadinovich was a pro se litigant himself, and won his case, so maybe he will again. It seems to me though that if he was hired to run the nonprofit, fundraising was his job too. But here is the meat of the article:
‘In his letter to Vukadinovich, Kaufman rebuffed the demand for payment, writing that “we believe medical evidence will show that the judge did not have the legal capacity to enter into contracts in 2018.”‘
What does that mean for the litigants who Posner was on an appeals court panel for in 2017?
I'm baffled by the frequent use of Alzheimer's as a diagnosis when a frankly aged person shows evidence of intellectual decline. In medical school (over 40 years ago) it was taught that Alzheimer's (then also called pre-senile dementia) was diagnosed by a characteristic finding of "neurofibrillary tangles" on a brain biopsy. So when a younger person, perhaps under 55, had signs of mental delcine, a biopsy might confirm Alzheimer's. Remember when Reagan had a biopsy done shortly after leaving the White House (he wore a ball cap for a while, to cover his shaved head) and it confirmed his diagnosis. CT scans will very commonly show evidence of brain shrinkage in people as young as 55, and it's often just an incidental finding on a scan obtained for some other reason than dementia.
Now every old person who develops evidence of dementia has the diagnosis of Alzhemier's Disease pinned on his shirt. When they ultimately pass away, often we will hear that " he died of Alzhiemer's". I expect that even a severely demented octogenarian might live many years with Alzheimer's as long as the heart lungs liver kidneys continue to function well and proper elder-care is provided.
Has there been some significant change is the confirmation of Alzheimer's, or has the usage just become careless and accepted as such?
How in the world did Vukadinovich continue to show up to work for 18 months without once being paid? Was he cowed by Posner's reputation? Was Posner entirely without ethics and stringing Vukadinovich along? Was Posner making empty promises of funds on the way?
Having been in business I am always astounded by when I hear someone from the not-for-profit or government sector malign the ethics of those signing paychecks. Not surprised that when Posner was in the hot seat he forgot to send the checks, much less sign them.
Posner always struck me as an arrogant SOB. Now it is confirmed. I think the alzheimers was a red herring to the morality of the behavior (though obviously relevant to the court case).
Real live story, because I knew some of the participants.
Neighbors a couple doors down growing up came to my father to represent them in litigation over a warehouse that they had bought, wrapped the mortgage, then resold. Guy at the end of the line defaulted on the loans, and the question ultimately was, who was going to take the loss. In the end, it was a dispute between our neighbors and the guy ahead of them in line. Each had an outstanding loan, and the question was which ones had been subordinated. It was complex real estate law, which was why my father was involved. It all came down to a phone conversation the male neighbor had, where he was asked to subordinate, and said nothing. They assumed that he acquiesced, went ahead with the deal, and, as noted, it ultimately, a couple years, later blew up.
Father wasn’t a litigation attorney, so brought in another lawyer to sit first chair. At trial, the wife (always so well spoken when we were growing up) was a lousy witness. But she wasn’t privy to the critical conversation. But then their attorneys (my father) refused to let her husband testify, because he didn’t remember the conversation. They stipulated to the contents of the critical conversation as portrayed by the other side. No matter, the trial court found them liable, based on his refusal to testify. This was civil court, so there is no 5th Amdt right against self incrimination. No matter. Appeals court concurred. Up to the CO Supreme Court. They got Cert on the question of whether a mortgage (and thus its subordination) was an interest in real property, thus subject to the Statute of Frauds (requiring a writing). The appeals court, in finding for the other party ,had implicitly answered that it wasn’t. Which, of course, almost anyone surviving Real Property as a 1L, would question. After all, how can you terminate an interest in real property through foreclosure, if the underlying mortgage was not an interest in real property? Unfortunately for the state of the law in CO, they never got to that issue, deciding instead that there had never been a contract to subordinate in the first place, because acquiescence by silence requires a duty to respond, and there hadn’t been one. No contract meant that their loan had not been subordinated, and maybe more importantly, they were the prevailing party, which meant better than a half million dollar shift in attorneys’ fees. They weren’t going to lose the house (mortgaged for the appeal bond) that we had played in growing up, and learned to shoot in, in Boy Scouts (they had a range in a culvert buried under their corral, that opened into the family room), etc. And that was 30 years ago.
Turns out, the reason that the male neighbor didn’t remember the critical call was that he was in early onset Alzheimer’s at the time. No one knew it yet. We all became aware of it in future years. For example, they lived in Golden, and a friend would see him tooling around in Littleton in his distinctive lime green 911, 20-30 miles away - lost. He had worked there, so could find it, just couldn’t find his way back. They weren’t as quick to take his keys away as my partner was with her father. One of the harder things to do with your parents.
So Posner's last legal cases involves his representatives using sophisticated legal talent to slap down a pro se complainant who only asks to be paid what he was promised? If only Posner knew!
Shame on Eric Posner for allowing this to happen. I'm sure he could easily cut a check for the 170k. How much are the lawyers costing, anyway?
I gather the Foundation had staff of some kind who were paid. Sorting through requests for help, briefing the lawyers? But it seems the lawyers, along with non-lawyer Vukadinovich, were not paid. I sense some possible jokes here. Never before, and based on this experience, never again? This is why lawyers don't want to represent the pro se people--they don't pay their bills? No one had ever worked out a way to rip off so many lawyers at once? Lawyers are idealists at heart--they just needed the right encouragement to sacrifice themselves for a cause? One lesson of "Better Call Saul" (about to start up again): work for people who are prepared to pay in advance, with no complaint. Big corporations, and drug dealers.
Of course one potential group of donors who were a big disappointment were: lawyers. Did everyone involved with the Foundation, suffering from dementia or not, all assume that Posner would somehow be a great fund-raiser? Even in his heyday? I've been told there are specific skills and experiences that go into this. Class A fund-raising causes are "easy": cancer is probably the obvious example. Others are often left to pick up crumbs.
Skeptical Voter @ 11:12 and 11:13: A sure sign of advancing senility is duplicate postings. I have personal experience with this.
I had a retired Federal judge as a patient. He was a shadow of his former self but refused to quit driving. After he was involved in a minor traffic collision the DMV called him in, retested him, and pulled his license. He died within 4 months.
The last 15 months I have been studying mathematics again
Me too! Started with differential forms, passed through Lie groups, and now headed back up with a re-reading of my old analysis text. The problem is, I get obsessive when doing math, everything else goes by the board. Two months pretty much disappeared from my life.
One thing I discovered back in my fifties when I got a math Ph'D was that abstractions were easier to handle. A good thing, as I jumped directly into graduate algebra without preparation, and modern algebra is loaded with abstractions. These days I notice some decline in the ability to concentrate, maybe I should take up smoking again :)
I do worry about mental decline, my memory, never that good, is developing pot holes. I don't think I am going to be one of those guys still sharp at 90, assuming I get to 90.
I'm baffled by the frequent use of Alzheimer's as a diagnosis when a frankly aged person shows evidence of intellectual decline. In medical school (over 40 years ago) it was taught that Alzheimer's (then also called pre-senile dementia) was diagnosed by a characteristic finding of "neurofibrillary tangles" on a brain biopsy. So when a younger person, perhaps under 55, had signs of mental delcine, a biopsy might confirm Alzheimer's. Remember when Reagan had a biopsy done shortly after leaving the White House (he wore a ball cap for a while, to cover his shaved head) and it confirmed his diagnosis.
I thought, unless something has changed in recent years, that Alzheimer's could not be definitively diagnosed while the patient is still alive. The Mayo Clinic seems to confirm that. I don't recall that story about Reagan at all--in fact you're probably thinking of a hematoma that he got from a fall off a horse. It was more than five years after leaving office that he was diagnosed, or at least that anything was made public.
In any case, I agree that it's overused, and has become a stand-in for "any dementia without a specific cause." My father was "diagnosed" with it when he was 86. His cognitive skills declined at first, but then basically leveled out. He lived another 12 1/2 years, and never had the tantrums or mood swings associated with Alzheimer's. He never stopped knowing who we (his kids) were, as revealed by questions he would ask us individually.
As to the case, why did he continue to work for so long without getting paid? IANAL, but isn't there a sort of implied consent by that? Or at least, why did he wait so long before filing a complaint? I'm surprised Posner's defense is going with the incompetency claim, as that's a pretty extreme assertion regarding someone who continued to practice law.
Interesting that no one suggests (although I may have missed it) that it might make sense to have a rule that after age 80, say, federal judges would have to agree (prior to Senate confirmation, since we don't want to have to amend the Constitution's "for life" stipulation, which of course was written when few people lived beyond 80), any federal judge who wanted to keep hearing cases would have to receive the affirmative though private and anonymous backing of 50% or maybe 33 % if you're worried about political votes.....of the fellow judges in his district or circuit, i.e., "she's not bonkers.". Having clerked for an appellate federal judge when he was 78, and the appellate judge across the corridor was in his 90's, and having, as a litigator, appeared in front of federal judges their 80's who were clearly -- shall we say "bonkers"? -- this would be a good idea, IMHO. And btw, this shouldn't be a matter of mri's or x-rays, or "diagnosis" -- let their colleagues decide, they know. This could also be accomplished by Congress changing the compensation/pension rules (again, so long as they don't "reduce" it in the Constitutional sense).
>>Posner always struck me as an arrogant SOB.
Well, he's still alive, so it technically doesn't come under "de mortuis," so, me too. Plus I recall at least one or two atrocious and pompous tax opinions, which is one of my Gell-Mann areas.
Unless there's something very clear in writing, I find it hard to see how Posner would have any personal contractual liability, which is what Vukadinovich appears to be claiming. More plausible might be some sort of fraud claim.
--gpm
Posner was quoted in a New Yorker article as saying he considered himself slightly sinister (or words to that effect). His malicious treatment of litigants often bore that out. Still, it is very sad to read this, and I wish a cure for Alzheimer's had been found before he got it, poor guy.
I have a little insight into the Seventh Circuit. Posner suffered some personality changes that caused his long-time colleagues to become concerned about him. He retired shortly thereafter amid controversy about his pro se coaching project, which he attempted to launch while still on the bench.
His colleagues were and are very discreet regarding these matters, so I don't know the play-by-play on this.
Blogger Douglas B. Levene said...
That is a very sad story. Posner is a great man by any measure and this is a sad ending to an epic career.
Ann Althouse said...
I've updated the post so the substantive part of the article is apparent.
This is an important story about the decline of a great man.
Blogger NYC JournoList said...
Posner always struck me as an arrogant SOB. Now it is confirmed. I think the alzheimers was a red herring to the morality of the behavior (though obviously relevant to the court case).
==========
interesting clash of opinions
I need to explore for edumacation
it is strange to call Trump 'Populist' when he is popular
but call Pelosi, Schumer and Biden democratically elected leaders when they are Bonkers with /cabalistic/ support structure.
so how fares your Judiciary branch with life-time appointment
"Has there been some significant change is the confirmation of Alzheimer's, or has the usage just become careless and accepted as such?"
It has very much passed any point where is was correctly used, just as Alzheimers is slapped on many other forms of dementia conveniently ignoring any nuance or differences in how people manifest the disease.
My Mom died of a more rare form of dementia and it was depressing to see people treat her as if her memory and cognition were lost, assuming that everything is just like alzheimers. There is still a ton of misinformation (and stigma) about Alzheimers and other forms of dementia.
So many people consider themselves experts on every subject today, even when they really don't have the depth of knowledge to act that way.
Here is a suggestion for an interesting law review article. Is there any evidence of confusion
in the opinions that Judge Posner wrote in the year before he resigned?
I don't know anything about the law but I've had to deal with more than my share of demented seniors. Both women, as it happens. I was conservator for Oma for her last four years, and had to be the bad guy depriving her of the car, and much else--when she was 89.
"Senile dementia" was her diagnosis, and she lived it to the full until she died at 94. My mother was just bitter, mean, and crazy and lived to be 91. Their last years were no fun for anyone.
I hope that if I live so long and get so messed up, someone will put me out of our misery.
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