More on Neely, “The Product Liability Mess”

by Walter Olson on June 13, 2008

I entered this as a comment on Ted’s earlier post, and figured it was worth giving separate post status:

I too have read The Product Liability Mess with minute attention, having written the Fortune magazine review of the book, which was among the more high-profile reviews it got. And Ted is right: the more context you supply for the quote from the rest of the book, the less doubt you will harbor that it was meant straight, not ironically.

Since Neely’s statements in the book were almost electrifyingly frank, I can’t say I am surprised that he would later find it expedient to back off from and indeed disavow them; aside from changing his mind on matters of policy (at least I assume he’s changed his mind), and the exigencies of his later practice as a plaintiff’s lawyer, we all assumed at the time that in his judicial role he would come under enormous pressure for seemingly having admitted to deciding cases in a way many would regard as illegitimate.

It is remarkable that he would now speak of wanting to sell books as a motivation while simultaneously maintaining that the passages in question were meant to be taken ironically. It was precisely because the statements were not presented as kidding around that they foreseeably called wide attention to the book. (This is also in tension with Thornburg’s theory that Neely was critically describing other judges’ thought processes but not his own. I have to wonder whether she, like others who have taken up this matter recently, sat down and read the book.)

After my Fortune review was published I met and got to know Neely; we appeared on panel discussions together and shared many conversations. Without breaking any confidences about the private talk, I will only observe that at the public appearances we did, he had ample opportunity to state that he had just been kidding or merely ironic in the passages at issue, which figured so prominently in my Fortune review, but I do not recall his taking any such opportunity. I do not know, by the way, whether I am the nameless reviewer he unkindly calls a simpleton, but I have reason to doubt it, since he subsequently gave an extraordinarily favorable blurb to my book The Litigation Explosion, for which I continue to be grateful.

The whole thing is regrettable on a number of levels. I continue to think the books Neely wrote in his early career (“How Courts Govern America”, etc.) have much to recommend them both in substance and in their clear, pungent style, and for many reasons regret the loss of the career as public intellectual on which he had seemed to be well launched.

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Richard Neely’s lack of irony (III)
07.07.08 at 7:09 am

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