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.

I either case I don’t get a sense of irony.

I don’t know what the ABA Journal said that it felt it needed to make an apology, but its correction, which I was not previously aware of, is certainly not an accurate characterization of what I read, and I feel no need to mention it, and it does not change my opinion of what I read.

“In the December ABA Journal a quote about product liability cases was attributed to West Virginia Supreme Court of Appeals Justice Richard Neely. The quote, from Neely’s book “The Product Liability Mess,” was taken out of context. In the context, Neely was using an ironic style to mimic the unspoken rationale he feels some judges use to rule for plaintiffs. The quote does not reflect Neely’s personal position on the matter, and the Journal regrets inadvertently distorting his views.”

It’s hardly a personal attack to point out that neither you nor Olson (nor countless others) mentioned the correction in the ABA Journal. As I mentioned on TortDeform, I just contacted Neely’s office and expect to hear from him tomorrow. I’ll followup at TD as soon as I hear from him.