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Reflections on Judging
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B+ : somewhat specialized focus, but accessible, interesting -- and entertaining
See our review for fuller assessment.
From the Reviews:
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The complete review's Review:
Richard Posner has been a federal judge on the US Court of Appeals, Seventh Circuit, since 1981, and in Reflections on Judging he draws on his long experience in considering the state of (federal) judging, looking at both general issues as well as the specific ones he sees it to be facing nowadays.
Drawing on his decades of experience, he nevertheless focuses on the present and future, suggesting how the system might function better.
This is a book that focuses on appellate courts, but there's a good deal hear about higher (Supreme Court) and lower level federal courts as well, and much about contemporary American legal culture and practice too.
If his primary audience is fellow judges, law clerks, and lawyers who appear before the federal courts, his book is nevertheless also of interest to those outside the field in its valuable description of the workings (and failings) of the system, his suggestions for improvement or alternative approaches, and his commentary on judging (and the legal theories/approaches to it) in general.
My subject is the challenges that the federal courts face today, with particular emphasis on rising complexity.Among Posner's major concerns is that the contemporary judiciary is not equipped to deal with a rapidly changing world, noting especially (but not only) weaknesses in properly understanding mathematics and technology. As he notes, the issue isn't that judges generally don't have scientific backgrounds (though that is, of course, part of the problem) but rather that they're not even equipped (or trained) to deal with dealing with the issues of complexity that they face. They don't need to have the expertise in whatever scientific or mathematical fields come up, but they need to be sufficiently knowledgeable to evaluate how scientific, technological, and statistical information is presented, and, in jury trials, to facilitate and ensure that the jury understands how to handle what they're confronted with.
Here as elsewhere, Posner focuses on the judge's role as manager, and he makes a good case for careful consideration on the part of judges as to their managerial role, including regarding such issues as the selection and use of expert witnesses (which, as he explains, he favors being court-appointed -- even as that can make for more hands-on work for a judge). Posner is especially critical of judges whose chambers are hierarchical -- law clerks managed by a senior law clerk, who in turn reports to the judge for example -- and repeatedly notes that it's important for judges to be thoroughly involved in all aspects of handling the cases before them. Hence also his enthusiasm for judges writing their own opinions (rather than editing their law clerks' versions, which is the prevalent and preferred method). He explains how he works on his opinions, and how he utilizes his law clerks, but understands it's a bit of a hard sell to other judges; still, he gives it his best shot.
Posner harps a great deal on the need for clarity and openness, noting that it serves everyone's interest to have as much clarity as possible, especially regarding issues which are already complex. He encourages the use of illustrations in briefs and opinions -- baffled by how: "some lawyers think a word is worth a thousand pictures" -- and points to: "the obsessive invocation of 'plain meaning', which is to say of text devoid of real-world context" by judges as an avoidance strategy for dealing with real-world contexts that judges don't have much of a grasp of. He denounces the use of dictionary-definition parsing and finds it deeply disturbing that (quoting from a study on the subject):
In the Rehnquist and Roberts eras, dictionaries have become a principal resource for determining the meaning of statutes. Dictionary usage has risen from 3.3% of all decisions during the final five years of the Burger Court to 33.3% of our dataset decisions for the last three Roberts Court terms.But Posner's argument in this book is also a much broader and more consequential one. The reliance on dictionary-definitions, for example, is only symptomatic, of something much more pernicious: the rise of legal formalism (and its consequences). More than anything, Reflections on Judging tries to make the case for legal realism.
Posner sees the difference between them as:
The formalist wants to use a complex style of legal analysis [...] to resolve cases without having to understand factual complexities. The realist, in contrast, wants to impose a simple style of legal analysis on a sure understanding of the scientific or commercial complexities, factual rather than legal, out of which cases arise.(Yes, it's fairly obvious which approach Posner is endorsing.)
The difference amounts to one of nearly pure abstraction -- the law almost like mathematical formulae (except that the dictionary sometimes has to be pulled out to determining what that "+" or "Σ", etc. really means here ...) where it doesn't matter what the variables at issue in a particular case are -- versus a more realist approach in which the real-world background to the case, and the consequences of the different ways the case could be resolved are also (i.e. beyond just the (apparent) letter of the law) factors that play a part in any final determination.
Posner argues (well, demonstrates ...) that:
modern formalism is better described as a tendency than as a dogma. It is a tendency constantly veering into absurdity.And he goes on to nicely attack such favored formalist tendencies as "textualism" -- which brings him up against Supreme Court justice Antonin Scalia (and specifically the massive book he co-wrote with Bryan A. Garner, Reading Law, demolished here). Posner has no doubt:
In form, textual originalism is a celebration of judicial passivity; in practice, it is a rhetorical mask of political conservatism.Perhaps to suggest some balance, or to reassure that he hasn't gone off completely onto some liberal dark side Posner also devotes quite some space to skewering Akhil Amar's America's Unwritten Constitution (both these pieces are adaptations of book reviews originally published in The New Republic, here and here), but there's considerable difference between Scalia's position as Supreme Court justice and the academic Amar and the influence they have.
Posner is particularly disturbed by what he calls: "Scalia and Garner's favorite rhetorical device" in their book: the omission of contrary evidence -- which, of course, is not something that anyone wants to see from someone in that supposedly unbiased, consider-all-the-evidence profession of judge .....
Posner's insistence that plain and simple writing is the best form of legal judgment also allows for easy swipes at the current Supreme Court (and its formalist conservative contingent); among the nice digs he gets in is a comparison of Justice Holmes' casual approach in his decisions to those of the current Supreme Court, "which fairly pant with erudition".
Among the powerful arguments Posner makes at greater length is in his criticism of the recent Second Amendment case, District of Columbia v. Heller; aside from general disagreement about the handling of the case he notes specifically:
The range of historical references in the majority-opinion is breathtaking, but it is not evidence of disinterested historical inquiry; it is evidence of the ability of well-staffed courts to produce snow jobs.Reflections on Judging does, at times, veer a bit uneasily between general analysis and guidebook. So, for example, Posner also offers, along the way, lists of suggestions and recommendations, sample jury instructions (introductory (before the case is heard) and final (before deliberations start)), and even the original (3237 word-long) court opinion in a DC Court of Appeals case along with a (602 word) alternate version he suggests (as an example of different approaches to opinion-writing).
As in many of Posner's books, parts of this one are cobbled together from previously published pieces; even as these are re-edited and tailored to the larger new work, the seams occasionally do show -- as here with those book reviews. Similarly, he re-purposes some older pieces in railing against the slavish veneration of The Bluebook ® (a widely used guide to legal citation) and the incredible amount of time wasted in ensuring proper Bluebook-citation-form is adhered to (admittedly relevant to several of the points he is making -- and it is a fun, good old-fashioned take-down). As he notes, this is yet another creeping form of (unnecessary) complexity; quoting himself from more than a quarter of a century ago he argues this is just an instance where: "Form is prescribed for the sake of form". Citation is proper if the reader can readily ascertain and find the source; legalistic fetishization of a specific format for every possible contingency, along with abbreviations (he hates them) and footnotes (he thinks they should be avoided, where possible) are just another part of the problem. Even standardization and uniformity are not necessary, he suggests, as long as the information is clearly conveyed (which, in fact, is often not the case with Bluebook-citations).
The shift towards legal formalism, adding yet more complexity (albeit of the largely artificial sort) to a world already swamped by complexity, is a dangerous one, as Posner recognizes. The deceptive simplicity suggested by John Roberts at his Supreme Court confirmation hearings -- that the role of a judge is to call balls and strikes, like a baseball umpire -- is entirely misleading (balls and strikes in baseball could easily be 'called' by a machine -- with a much lower error-rate than the human eye permits -- but the law is a considerably more complex beast), and Posner properly notes in a footnote:
If confirmation hearings were serious inquiries into a candidate's fitness rather than a low form of political theater, Roberts's statement would have been disqualifying.Alas, there was barely any fuss at the time, and formalism has continued to have an ever-greater hold on American law -- hardly for the better.
Posner's call for the simple and straightforward, and for an effort at comprehensibility -- especially as we deal with increasingly complex issues -- is just another side of the same problem. Formalism tends towards obfuscation rather than clarity (in all but the simplest cases -- and there are very few simple cases left). Given his stature and renown, one can hope Posner's call will be heeded, or at least discussed. He understands that there are any number of hurdles, but he's a realist in this sense, too, and there are some steps that can be taken. Perhaps not that many judges can be convinced to draft their own opinions, but some of the other improvements -- such as a willingness to consult the Internet ... -- certainly seem within the realm of the possible.
Certainly of interest to anyone who deals with or follows the American legal system, Reflections on Judging is a timely, accessible, and well-written work.
- M.A.Orthofer, 16 September 2013
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Richard A. Posner is Chief Judge, U.S. Court of Appeals for the Seventh Circuit. He is also a senior lecturer at the University of Chicago Law School, and the author of many books.
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