Riding Metro-North to work a few weeks ago, I was startled by an article in the New York Times (Sept. 12, 2017 at A18) about Judge Richard Posner. The prolific Posner, recently retired from the Seventh Circuit, was being interviewed by the Times and made some extraordinary comments.
“I pay very little attention to legal rules, statutes, constitutional provisions,” said Posner, who has written over 3,300 judicial opinions. “A case is just a dispute. The first thing you do is ask yourself—forget about the law—what is sensible resolution of this dispute?”
Don’t worry if the law is against you, advises Posner. “When you have a Supreme Court case or something similar, they’re often extremely easy to get around.”
Wow! How is that for a bracing splash of cold water first thing in the morning! “Forget about the law”? Sure, that’s what lawyers and judges do, right? “[P]ay very little attention to legal rules, statutes, constitutional provisions”? Why not? “[G]et around” adverse authority? Absolutely. Do it every day, often several times a day.
What is going on here? Has the eminent jurist, after 35 years on the bench and a score of books, lost his mind? Is he espousing lawlessness? Has he become a nihilist, an anarchist, or an adherent of Critical Legal Studies movement?
On first read, Posner’s comments do strike us as unexpected and even bizarre. After all, legal rules, statutes and constitutional provisions—the law—are what we study, argue about, and spend our lives interpreting and applying. How can we lawyers and judges “forget” about the law? The law dominates our lives. We might as well “forget” about civilization and history, right?
But this first reading may be superficial. Posner may be saying something far deeper and more important, both more subtle and more profound. He may be using his shocking phrases to wake us up to reality. Posner may be doing what Oliver Wendell Holmes did 136 years ago in his book “The Common Law.”
In that revolutionary book, Holmes famously wrote: “The life of the law has not been logic, it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have a good deal more to do than the syllogism in determining the rules by which men should be governed.”
The law, added Holmes, “pretty nearly corresponds … with what is then understood to be convenient.” “[A]ble and experienced” judges” know too much to sacrifice good sense to a syllogism.”
But, said Holmes, “judges most rarely mention, and always with an apology,” these public policy considerations in their decisions. Holmes argued that judges should make their “instinctive preferences and inarticulate convictions” explicit. Holmes favored transparency in the judicial process.
In these passages, both Holmes and Posner are using similar languages and espouse similar views about the law. What they both said shocked their colleagues. But Holmes and Posner are acting on the same impulse. They are rejecting an abstract notion of the law. Instead they favor a pragmatic, problem-solving, dispute-resolving approach.
Drop the mask, they are saying. Don’t think of law as a disembodied, transcendental concept. Consider it a tool for deciding disputes fairly. Focus on the realities of life.
Sound familiar? It should. It is what animated the legal realist movement of the first half of the 20th century. It is one of Holmes’s legacies.
It is not surprising, then, that in the introduction to his 1992 book “The Essential Holmes,” Posner calls Holmes “the most illustrious figure in the history of American law” and “a major figure in American intellectual and cultural history generally.”
Posner’s recent eye-catching and provocative comments may bring us up short, but they are in good company and part of an honorable tradition. He doesn’t really mean we should “forget” about the law, but that we should not make a fetish of it at the expense of its real-world impact.