By Richard A. Posner, Harvard University Press, Cambridge, Mass., 380 pages, $29.95
Since his 1981 appointment to the U.S. Court of Appeals for the Seventh Circuit, Judge Richard Posner has earned a reputation as one of the leading intellects on the federal bench. In addition to being an incisive appellate jurist, he has tried cases, taught in law schools, lectured widely, blogged extensively, and published more than 30 books and dozens of scholarly articles.
In his latest book, Posner laments the judiciary’s inability to keep pace with the flood of technological, scientific, and economic complexities that increasingly dominate the federal docket. These “external” complexities are, in turn, exacerbated by “internal” complexities that bedevil judges and prevent them from doing their work effectively. It is a thought-provoking book that lawyers and judges should find useful in understanding these complexities and each other.
The book is also a memoir. Following his graduation from Harvard Law School, where he was president of the law review, Posner clerked for Supreme Court Justice William Brennan. He felt that his clerkship was insufficiently challenging, however, commenting that he would have learned more clerking for the noted legal realist, Judge Henry Friendly of the Second Circuit.
After stints with the FTC and the Solicitor General’s Office, Posner entered academia, where he became a leading expert on antitrust and the economic analysis of the law. During the 1970s, he also developed a lucrative consulting practice. At age 42, he was appointed to the bench.
In explaining the challenge of external complexity, Posner states that a question is complex by virtue of its complicated interactions, “or, in other words, a system rather than a monad.” The system can be technological, economic, political, or ecological. These systems are external to the legal system and create the environment that generates the cases. The problem is that, while specialists can often understand and solve questions arising from these complicated interactions, generalists cannot. Posner points out that most judges are generalists, and are increasingly confronted by complexities they have difficulty understanding.
Posner identifies what judges do when they do not understand the activity from which a case has arisen. He refers to it as “judicial insouciance about the real.” He notes that they first “duck, bluff, weave, [or] change the subject.” They might also defer to lower-level decision-makers (appellate judges to the trial judge; the trial judge to the jury). This insouciance might further consist of the adoption of a multifactor test with no guidance as to how the various factors should be weighted. It also might emerge through a recasting of the issues in semantic terms. Sometimes, insouciance means that judges just wing it, substituting a guess for data.
According to Posner, the root of the refusal of most judges to confront the challenge of external complexity is a professional mindset that lacks curiosity, feels intimidation by science and technology, and lacks interest in obtaining an empirical rather than a merely intuitive ground for one’s beliefs.
At the state court level, this problem has been partially solved with the rise of specialized courts. But Posner does not believe that they are the answer to complexity in the federal system. He posits, for example, that the Federal Circuit has under-achieved and many immigration judges are under-qualified. Rather, he states that the problem can be addressed by keeping the law simple, regardless of the complexity of the issues. In Posner’s view, judges should focus on managing complexity, not adding to it.
Posner explains that managing complexity begins with a new judge’s own chambers. In his view, the new judge should first determine whether she will do her own writing and how the work is to be allocated among the clerks. Next, she should focus on how to pick the type of clerks who will best serve her model for running her chambers. For new appellate judges, Posner cautions that they should appreciate the importance of maintaining collegiality, because breakdowns give rise to delay, unnecessary dissents, and animosities that influence judicial votes.
Posner states that he writes his own draft judicial opinions. He acknowledges that most judges do not, and instead rely on their clerks to write the first drafts. He explains adroitly why he finds this other method wanting. An ideal judicial opinion is the product of analysis and experience. A 20-twenty-something clerk can do the analysis, but “cannot articulate the judge’s experience.” He states that a clerk-written draft typically “lacks color, depth, and authenticity.”
The best parts of the book are where Posner explains that judges can successfully confront complexity by eschewing legal formalism. He is especially critical of the arch-formalist, Supreme Court Justice Antonin Scalia.
Posner writes that a formalist approach to law is premised on the belief that legal issues should be resolved through logic, text and precedent. By definition, a formalist will assign no importance to a judge’s personality, values, ideological leanings, background, or real-world experience. He will instead rely on definitions from the dictionary, excessively invoke rules of construction, masquerade verbosity as precision, engage in law office history, preach restraint and employ rhetoric to mask the appearance of legislating from the bench. Posner believes that it is a disingenuous approach that only hinders the judiciary’s ability to manage external complexity.
According to Posner, judges should aspire to legal realism. He writes that, in the face of mounting complexity, appellate judges should become more realistic, less passive, and more fact- and policy-oriented. Realists want the law to be grounded in reality and conform as far as possible to lay intuitions. They do not have a judicial philosophy that generates outcomes in particular cases. They want judicial decisions to make sense in a way that can be explained to a lay person. They believe that interpretation should be guided by the purpose of a text, rather than simply by its literal meaning. They do not employ legal jargon and want their opinions to be readable by non-lawyers. They are cognizant of the consequences of a decision. And they do not draw sharp lines between law and policy, judging and legislating, or legal reasoning and common sense.
Posner confesses that he was a formalist when he was appointed in 1981. Now, looking back from the high hill of 30-plus years on the bench, he acknowledges that he has matured into a realist. If the noted realist, Henry Friendly, was considered the greatest judge of his generation, Richard Posner will certainly be on the short list of his own generation.
Jeffery Winn is a partner at Sedgwick.