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Review of Richard Posner’s “The Federal Judiciary”

In Arts & Letters, Book Reviews, Books, Jurisprudence, Law, Writing on December 27, 2017 at 6:45 am

This review originally appeared here in the Los Angeles Review of Books.

“I’m not a typical federal judge,” Richard Posner says in his new book The Federal Judiciary, which seems designed to affirm that claim.

Released in August, this tome shouldn’t be confused with his self-published Reforming the Federal Judiciary, released in September. The latter has generated controversy because it includes documents internal to the Seventh Circuit Court of Appeals, including personal emails from Chief Judge Diane Wood and confidential bench memoranda. The former, the subject of this review, is no less blunt, though one suspects the editors at Harvard University Press ensured that it excluded improper content.

Publication of both books coincides with the sudden announcement of Posner’s retirement. This quirky and opinionated jurist is going out with a bang, not a whimper, after serving nearly 36 years on the bench. He could have taken senior status; instead he’s withdrawing completely, citing his court’s handling of pro se appellants as the prime reason.

The Federal Judiciary presents “an unvarnished inside look” at the federal court system, which, Posner insists, “is laboring under a number of handicaps,” “habituated to formality, resistant to change, backward-looking, even stodgy.”

Posner is a self-styled pragmatist who champions resolving cases practically and efficiently through common-sense empiricism without resorting to abstractions or canons of construction. He adores Justice Oliver Wendell Holmes Jr., whose jurisprudence resembled the pragmatism of C. S. Peirce, William James, and John Dewey. His methodology relies on analyzing the facts and legal issues in a case, and then predicting the reasonable outcome in light of experience and the probable consequences of his decision. Accordingly, he follows his instincts unless some statute or constitutional provision stands in the way. Most of the time, the operative rules remain malleable enough to bend toward his purposes.

This fluid approach to judging stands in contradistinction to that of Justice Antonin Scalia, for whom Posner has little affection. In fact, Posner establishes himself as Scalia’s opposite. Where Scalia was formalistic and traditional, Posner is flexible and innovative. Where Scalia was doctrinaire, Posner is pragmatic. Where Scalia was orthodox, Posner boasts, “I am willing to go […] deep into the realm of unorthodoxy.”

Posner’s criticisms of Scalia can seem irresponsibly personal, involving not only Scalia’s originalism and textualism (legitimate objects of concern) but also his religious views on Creationism (about which, Posner declares, Scalia was “wrong as usual”). He calls Scalia’s belief in the devil “[c]hildish nonsense” and denounces Scalia’s unhealthy lifestyle. In a low moment, he calls Scalia “careless” for dying next to a sleep apnea machine the ailing justice wasn’t using. This rebuke is irreverent, but is it constructive or extraneous? Does it advance Posner’s judicial methods while weakening the case for Scalia’s?

Aspiring to be “relentlessly critical and overflowing with suggestions for reform,” Posner attacks the “traditional legal culture” that, he says, “has to a significant degree outlived its usefulness.” Cataloging the targets of his iconoclastic ire would be exhausting. He jumps from subject to subject, castigating “judicial pretense” and treating with equal fervor such weighty topics as statutory interpretation and such trivial matters as the denotation of “chambers” versus “office.” He confers delightfully disrespectful labels (“slowpokes,” “curmudgeons”) on his colleagues but can also seem petty (complaints about food in the US Supreme Court cafeteria come to mind).

Most of his critiques have merit. His persistent assault on the sanctimony and pomposity of federal judicial culture is acutely entertaining, signaling to some of his more arrogant colleagues that they’re not as important or intelligent as they might think.

Posner likes to shock. What other judge would assert that the Constitution is “obsolete” or ask when we’ll “stop fussing over an eighteenth-century document” that institutes the basic framework of governance for the country? A bedrock principle underlying the separation-of-powers doctrine holds that the judicial branch interprets law while the legislative branch makes it. Posner, however, announces that federal judges legislate even though they’re unelected. Conservative commentators would offer this fact as condemnation, but Posner extols it as an indispensable prerogative.

Although he alleges that judges are political actors, he’s impatient with politicians. He ranks as the top weakness of the federal judiciary the fact that politicians nominate and confirm federal judges and justices. (The president nominates and the Senate confirms.) The basis of this objection is that politicians are mostly unqualified to evaluate legal résumés and experience.

A refrain Posner employs to advance his argument — “Moving on” — might serve as his motto for judges, who, in his mind, must break free from undue restraints of the past. “The eighteenth-century United States, the nineteenth-century United States, much of the twentieth-century United States,” he submits, “might as well be foreign countries so far as providing concrete guidance (as distinct from inspiration) to solving today’s legal problems is concerned.” This isn’t meant to be hyperbole.

His citations to Wikipedia and tweets — yes, tweets — enact the forward-looking attitude he celebrates: he’s not afraid of new media or of pushing boundaries. Consider the time he asked his law clerks to doff and don certain work clothing to test facts presented by litigants in a case before him.

His advice to colleagues on the bench: Let clerks refer to you by your first name; do away with bench memos and write your own opinions; stop breaking for three-month recesses; stagger hiring periods for law clerks; don’t employ career clerks; don’t procrastinate; don’t get bogged down in procedure at the expense of substance; be concise; read more imaginative literature; avoid Latinisms; abolish standards of review. If you’re an appellate judge, preside over district-court trials. And whatever you do, look to the foreseeable future, not backward, for direction.

Readers of his most recent book, Divergent Paths, will recognize in these admonitions Posner’s distinctive pet peeves. He believes that judges who don’t author their opinions are weak or unable to write well. If judges were required to write their opinions, he supposes, fewer unqualified lawyers would sit on the bench: inexpert writers, not wanting to expose their deficiencies, would not accept the nomination to be a federal judge.

Posner’s love of good writing is so pronounced that he praises Scalia, his chosen nemesis, for his “excellent writing style.” He sprinkles references to Dante, Tennyson, Keats, Fitzgerald, Nietzsche, T. S. Eliot, Orwell, and Edmund Wilson and supplies epigrams by Auden, Yeats, and Alexander Pope. Those who didn’t know it wouldn’t be surprised to learn that Posner majored in English at Yale.

Still one comes away with the impression that he has sacrificed precision for speed. He appears to have cobbled together several blog posts and other articles of only ephemeral significance to pad his polemic. He discusses judges’ “priors” on page 116 but doesn’t define that term (“a mixture of temperament, ideology, ambition, and experience”) until page 148. Liberal with block quotes, scattered in focus, he recycles by-now familiar arguments against Bluebook and legal jargon and other staples of the legal academy. Even those who agree with him on these points will balk at the redundancy.

The repetition isn’t only at the thematic level: it involves diction and syntax. He tells us on page 408, “Pope Pius XII made peace with evolution in 1950.” Then a page later, he states, “The Church had had a ‘problem’ with evolution until Pius XII had made his peace with it in 1950.” On page five, he writes, “almost all federal judicial opinions are drafted by law clerks […] in the first instance, and edited more or less heavily by the judge.” He then echoes himself on page 22: “[M]ost judges (and Justices) require their law clerks to write the initial draft opinion, which the judge then edits.” He describes this same process again on page 276. “I write my own opinions,” he declares only to repeat himself later: “I write and edit my own opinions.” These are mere samples of a striking trend in Posner’s book.

A former law professor, Posner concludes by assigning grades to the federal judiciary in eight categories: selection of judges (B), judicial independence (A-), rule of law (A), finality of judgments (B), court structure (B), management (C), understanding and training (C), and compensation (B+). Total? Around a B average. For all the fuss, that’s a decent score.

Posner’s characteristic arrogance is grandly exhibited. “I’m a pretty well-known judge,” he assures us. His preface includes a short bibliography for “readers interested in learning more about me.” He names “yours truly” (i.e., himself) in his list of notables in the field of law-and-economics, an indisputable detail that a more humble person would have omitted. Posner’s self-importance can be charming or off-putting, depending on your feelings toward him.

Yet he’s honest. And forthright. Not just the federal judiciary but the entire legal profession thrives off mendacity, which is not the same as a lie or embellishment. It’s a more extravagant, systemic mode of false narrative that lawyers and judges tell themselves about themselves to rationalize and enjoy what they do. Posner sees through this mendacity and derides it for what it is. His frank irritability is strangely charming, and charmingly strange. The federal judiciary has lost a maverick but gained a needed detractor.

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Judges and Dons

In Academia, Arts & Letters, Book Reviews, Books, Humanities, Law, Legal Research & Writing, Pedagogy, Scholarship, Teaching, The Academy on April 27, 2016 at 6:45 am

Allen 2

This review originally appeared here in The University Bookman.

For a still-active judge on the U.S. Court of Appeals for the Seventh Circuit who “moonlights” as a law professor, Richard Posner is oddly and stunningly prolific. He not only contributes to scholarly discourse but also writes his own legal opinions. That places him in a small minority among federal judges. Posner is justifiably proud of his prolificacy and diligence, and he’s neither apprehensive nor ashamed about castigating his peers—another quality that sets him apart.

Over the years, Posner has tried to, in his words, “pull back the curtain” on his colleagues, our Oz-like federal judges, exposing their failures and inadequacies—what he calls, channeling Star Wars, the “dark side”—lurking behind the glow and aura and imprimatur of state power. Posner suggests that federal judges are not adept at preventing “hunch” or “ideology” from influencing their decisions. Because of their inadequate knowledge and limited training, he adds, federal judges too often resort to feeling and intuition—their “unconscious priors”—to resolve difficult facts and issues. He believes the legal academy should curb this judicial inadequacy, insofar as scholars could, in their teaching and writing, guide judges with clarifying direction. Yet he sees a troubling gulf between law schools and the bench, one that, he insists, “has been growing.”

Hence his latest book—Divergent Paths—which seeks to “explain and document” this gulf, “identify the areas in which federal judicial performance is deficient, and explain what the law schools can do to remedy, or more realistically to ameliorate, these deficiencies.” Posner is as hard on the professoriate as he is on the federal judiciary, indicting the former for its dislocation from the bench and the latter for its “stale” culture. To his credit, Posner criticizes only the federal judiciary and the elite law schools with which he is familiar. He does not purport to speak for, about, or against the state institutions and non-elite schools to which he has had little exposure, which lends his critique credibility.

Little else in the book, however, is modest. Posner is his typical boisterous self, and his characteristic crankiness is on grand display. Whether it bothers or delights readers depends, I suspect, on the extent to which they agree with him. If you’re in accord with Posner on this topic—the institutional and cultural barriers separating federal judges from legal scholars—you’ll find his frank attitude and no-holds-barred criticism to be entertaining. In equal measure, someone else might find them off-putting. The same goes for the book: whether you enjoy it will depend on your affinity for Posner.

Like Justice Oliver Wendell Holmes, his hero, Posner sees Darwinism—natural selection in particular—at work in all aspects of human experience. For example, the legal academy is “Darwinian” because “each species of professor must find an academic niche in which he can avoid destructive competition from other professors.” As a result, professors gather together in protective communities—an “academic ecology,” in Posner’s words—based on shared disciplinary interests. “Their need to communicate with persons outside their niche,” Posner opines, “like the need of a squirrel to learn to eat dandelions as well as nuts, is minimized.” This metaphor supposedly illustrates that the academy has become divorced from the judiciary. Although amusing as figurative language, it’s perhaps not borne out by facts or evidence, nor by the data Posner presents in tables in his introduction. At best, then, Posner’s complaint is anecdotal, not empirical, and that’s disappointing coming from this learned judge who earned his reputation as an empiricist.

“Increasingly law school faculties cultivate knowledge of fields outside of law but pertinent to it,” Posner says, “including economics, psychology, statistics, computer science, history, philosophy, biology, and literature.” The gradual incorporation of disparate disciplines in law schools has, Posner believes, developed in tandem with the growing academic neglect of judicial activity. Put simply, law schools no longer primarily study the behavior and methodology of judges as they once did. Moreover, as law professors have proliferated and law schools have increased in size and number, legal academicians have found ample audiences among faculty and scholars and thus have not suffered from their dislocation from judicial institutions or from the flesh-and-blood judges who decide concrete cases.

Posner decries, with Trump-like enthusiasm, the “refugees” from other, less lucrative disciplines who’ve sought asylum in law schools. He claims, with apparent disgust, that “many of these refugees have a natural inclination to base their legal teaching and writing on insights gleaned by them in the disciplines that were their first choice.” Yet he never adequately demonstrates that interdisciplinarity—and the concomitant diversification of perspectives and backgrounds among legal faculty—damages or thwarts legal education. In fact, what he seems to decry is the current curriculum of legal education, which, to his mind, should focus on judicial behavior and opinions rather than on other areas of the law. He stops short of proposing that administrators build a wall around law schools and make other departments pay for it, but he would, I sense, favor a moratorium on faculty immigration to law schools, and possibly mass deportations for the faculty he deems unworthy or unqualified.

But what Posner dubs “the Ph.Deification” of law faculties is not necessarily bad. Posner himself reveals the disadvantages of being a generalist, which is what law school prepare their students to be. His own understanding of pragmatism, or rather misunderstanding, is itself evidence that he would have benefited from deeper learning in that subject (say, more reading of Peirce and James and less of Dewey and Holmes) before adopting it as his personal methodology and proclaiming its virtues to the world. His literary criticism in Law and Literature betrays a sometimes embarrassing unfamiliarity with the trends and history of that discipline, and his early forays into the economic analysis of law have failed to influence the economics profession or to contribute anything of lasting value to professional economists. Indeed, it is perhaps because he knew more than untutored lawyers about economics—though substantially less than actual economists—that his “economic analysis of the law” for which he became famous was as influential as it was.

The legal community, and legal scholarship in particular, would benefit from welcoming qualified specialists and, in so doing, broaden the parameters of legal study and force lawyers out of their insularity. Professors of legal writing ought to be equipped with academic training in writing and the English language. Isn’t the systemic problem of bad legal writing self-perpetuating when legal writing professors are drawn, not from professional writers and teachers, but from lawyers? Moreover, professors of corporate law or finance ought to have academic training in those subjects—training that goes beyond the rudimentary glosses that find their way into judicial opinions written by non-expert judges. To read judicial opinions on a particular subject is not a fruitful way of learning that subject. A judge may have no experience in the insurance industry, for instance, when a difficult subrogation case arrives on his docket, yet he or she must handle the case and likely write an opinion on the facts and issues involved. The judge must rely on the evidence and briefing proffered by the parties to the case, not on personal expertise, which he or she lacks. Accordingly, the resulting opinion—inherently and intentionally limited to what it can accomplish—will not likely be sufficiently edifying or insightful to have staying power, that is, to teach future students and practitioners about the fundamentals of insurance.

Yet Posner is right to grumble about how the legal academy is populated by professors with little practical experience in law. In fact, law is the one discipline in which, counterintuitively, the more practical experience you have, the less marketable you are as a professor. He’s probably right, too, that there are too many law schools and too many law professors—and, hence, too many lawyers for the saturated legal market.

Targets of Posner’s ire include jargon, esoterica, obscurantism, and wordiness (“the fetishism of words”); the so-called Bluebook, which is a standard reference tool for lawyers concerning forms of citation to authorities (which is “maddening,” “superfluous,” “cancerous,” and “time-consuming”); student editing of law reviews (for which “neophytes” rather than peer reviewers make the critical editorial decisions); excessive, obtrusive, and needless footnoting in legal scholarship (due in part to the aforementioned neophytes); the culture of secrecy and mystery among federal judges; the decline in legal treatises; hyperspecialization among professors; the political nature of judicial appointments and confirmations (including an emphasis on biological diversity rather than diversity of backgrounds and experience); lifetime tenure for federal judges; legal formalism; the unintelligibility of legal opinions to non-lawyers—the list goes on. If you’re familiar with Posner and follow his writings, you’ve probably heard these grievances already. But they’re worth repeating if, in book form, they can reach larger audiences.

Still, one gets the sense that Posner rushed this book into his editors’ hands. A chunk of a paragraph on pages 225–26 reappears, verbatim, on page 271, thus undermining one of Posner’s central points: the importance of brevity in writing. Some of his accusations can’t be supported by evidence, such as “academic critics of judicial opinions feel superior to the opinions’ authors” (how could Posner divine this psychological insight?) or “the average law professor was a better law student than the average judge had been” (possibly true, but how does Posner know this?). Posner’s citations to Wikipedia, moreover, will raise eyebrows. Finally, it’s either dishonest or imperceptive for this one time opponent of same-sex marriage to now claim that bigotry alone explains the conservative and Christian position on that issue, which is barely relevant to Posner’s book and for which he offers little argument.

Posner is willing to depart from judicial norms and conventions. He believes that case precedent should not govern causes of action that entail novel issues and circumstances. Controversially, he encourages judges to look beyond the briefing and the record to ferret out the truth and context of matters inadequately illuminated by the parties to the case. Some of his suggestions will seem remote to the average reader and aimed at an elite (if not aloof) audience of politicians and federal judges. Whether federal judicial salaries account for regional cost-of-living differentials, for instance, matters little to most Americans. Nor do we care, quite frankly, whether judges lack collegiality; we just want them to rule the right way. One would hope personality conflicts wouldn’t influence the operative rules that shape human experience, but it turns out that judges can be petty.

Posner fittingly includes a question mark in the title to the final section of his book: “The Academy to the Rescue?” That punctuation mark reveals how skeptical—or at least tentative—Posner remains about the likelihood that his subjects will institute proper and constructive change. Most of his proposed solutions are sensibly plain: if student editing of law reviews is bad, do away with student editing of law reviews; if the law school curriculum is bad, change it; if judges write poorly, offer them training in writing through continuing legal education courses; if litigants and lawyers travel too far and at too great expense, allow them to videoconference.

Divergent Paths succeeds in demonstrating the need to refocus the legal curriculum on judicial behavior, if only by exposing judges’ decision-making to scrutiny (and ridicule) and demystifying the glorified processes of judicial deliberation. “Most judges evaluate cases in a holistic, intuitive manner,” Posner submits, “reaching a tentative conclusion that they then subject to technical legal analysis.” Their goal is to arrive at decisions that comport with prevailing notions of morality, justice, and common sense. Statutory idiosyncrasies or awkward case precedents will not, in Posner’s view, prevent these judges from reaching the result that people untrained in the law would likewise reach because of their ethical predispositions and basic sense of right and wrong. Judges are people too, and for the most part, they want to do what’s reasonable.

Humility has few friends among judges and law professors, so it is fun, one must admit, to watch Posner serve these cognoscenti a still-steaming pan of humble pie. But even sympathetic readers will grow weary of the relentless complaining after hundreds of pages of it. Perhaps Posner should have minded his own dictum: “If you want a flawless institution go visit a beehive or an anthill.” Then again, if Posner—who inhabits both the judiciary and the academy—doesn’t speak up, who will? Answers to these questions could determine how important Divergent Paths really is.

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