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B : far-reaching/flung critique; lots of intriguing ideas and commentary
See our review for fuller assessment.
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The complete review's Review:
Richard Posner has been a federal judge (U.S. Court of Appeals, Seventh Circuit) since 1981, and also continues to teach law.
In Divergent Paths he examines what he sees as shortcomings of the American federal judiciary and then then the growing gap between the judiciary and the academy (legal scholarship and teaching, mainly at the leading American law schools), and the latter's failure to adequately address (or even just show interest in) many of these issues.
With a professoriate obsessed with and focused almost entirely on just the Supreme Court, and an academy that is increasingly specialized -- academic law having become more esoteric (just like, he notes, academic literary criticism and philosophy have) -- he finds legal scholarship more and more distant from the real-world practice of the law.
The academy would seem an obvious resource and forum in which the practice of law -- including the court-system, and meaning specifically the real, everyday activity of law- and judging-practice -- could be critically considered and discussed, but Posner finds that, instead, the academy has drifted ever further from this useful complementary and support-role it could play.
Today, judged by educational and professional backgrounds, and despite pronounced ideological differences, the Justices are peas in a pod.And, he argues:
The diversity that the Supreme Court and the lower federal courts need is diversity in political and other pertinent vocational experience besides just law.Indeed, judges' lack of familiarity and interest in the world around them -- indeed, a basic lack of curiosity -- is something Posner repeatedly comes back to: the law deals with the real world, and that must play a role in any decision-making, but he finds that far too many judges are unwilling to consider this, or inform themselves. (He repeatedly notes that the Internet is an amazing world-at-your-fingertips, and how disappointing it is that judges are not more willing to take advantage of it.) It is the resulting 'stale legal culture' which he sees as one of the basic problems of the federal judiciary -- and one which the legal academy should be well-suited to play a role in improving:
The problems of the federal judiciary have less to do with raw ability or potential than with a legal culture too little attuned to current needs, too backward looking. [...] Judges tend to cling to the old ways even as the rise of technological and broader societal complexity renders the old ways ever more dysfunctional.Posner rails against the 'fetishism of words' that he finds far too widespread in the law -- from judges to law students -- and again takes up arms against the notorious The Bluebook (even as he admits: "Fulminations against it by me and a few other fall on deaf ear") and the cult of proper citation ('citation-format anxiety' "should be listed in The Diagnostic and Statistical Manual of Mental Disorders", he suggests ...). He understands the reasons for this couching in specialized and complex language -- and the temptation to go on at great length (this "verbosity endemic to the legal profession"), whether in judicial opinions or law review articles -- but argues for the virtues of simplicity: to the point (without ignoring all the salient points) and comprehensible (meaning also -- even especially -- to the layman, since the law should be readily understood by all). A nine-point list of what good judicial opinion writing requires seems like common sense -- no jargon, delete every superfluous word, be grammatical but not fussy ("do not, on pain of expulsion from the legal profession, ever look at the Chicago Manual of Style"), etc. -- but is far from popular practice.
Posner's shift from legal formalism to realism is certainly complete here, from admitting he was mistaken in believing judges should try to determine legislative intent in interpreting statutes -- "Very wrong was I; judges are not mind readers" he admits, in distancing himself from his position of thirty years ago -- and admits too, succinctly:
Some judges may complain that by emphasizing the ad hoc character of statutory interpretation I am casting judges in a legislative role. I am.It now seems obvious to him, and the point is to move on, given this understanding -- that judges can and do decide cases based on changed circumstances and changed culture and the 'priors' they bring with them, rather than simply according to some supposed letter of the law. (Posner has little patience left for (claims of pure) formalism, and takes issue both with judges hiding behind it (or the excuse of it) and scholars who focus on it.)
Among the issues he tackles is poor office-management by judges (involving also the drafting and editing of opinions, with Posner yet again reminding readers that he is among the few federal judges who writes his own first drafts (rather than leaving a clerk to do that) and making his case again why more judges should, too). He notes:
Given the large role of the judicial staff in the operation of the judiciary, one would think judicial staff management a fertile area for academic research. It isn'tHe notes one reason it isn't is the: "secretiveness of judges" (and a tendency to mistrust professors who might want to study them ...), but he makes a good case for it being an area worth much closer study -- both at the Supreme Court level (which he judges to be quite poorly managed ...) and at lower levels too. (The academy's almost single-minded focus, as far as the Supreme Court goes, on issues of judicial philosophy he finds to be: "an unhealthy preoccupation" (and not a particularly fruitful one -- "The Justices are not 'philosophical'", and don't much care), while studies of its management might prove much more illuminating and helpful.)
In the sections on the academy he (re)considers the law school curriculum, noting that it encourages students already predisposed to formalism -- "they don't want to be challenged; they want to be fed technique" (and nit-picking Bluebook-style pseudo-precision fits the bill) while he believes what they should be learning is a more realist approach.
Some of Posner's suggestions are fairly simple and seem eminently practical, from taking management of law reviews out of their hands to providing more closer-to-real-life experience, such as allowing students to act as moot court judges. Given how deeply ingrained the traditional curriculum and system is -- yet more of the 'stale legal culture' he complains about --, one wonders how likely it is any such changes can take hold,
Posner also devotes a chapter to (continuing) judicial education -- noting how surprised many foreigners are by the American system, as abroad it is common to study to become a judge (it being a very different kind of career-track than it is in the US), while in the United States there are, at best, some introductory courses for newly appointed judges (none for new Supreme Court justices, however, he notes ...), and limited opportunities for continuing education. Posner sensibly argues that much more can and should be done here, and suggests some of the areas where judges require the most help.
Divergent Paths is also noteworthy for Posner's emphasis on clear language, especially in judicial opinions, and he offers many examples of writing that, he exasperatedly notes, is meaningless. Clarity of expression -- as opposed to the usual obfuscation -- is key, he insists, from all angles -- beginning with citation: as long as the citation is clear (i.e. the reader can find what it refers to) form simply shouldn't matter.
So too he argues that law school casebooks are -- aside from their ridiculous expense -- often unhelpful, because, with their edited cases-records (all available in full, for free, online), they don't accurately reflect the actual opinion: "Casebook editing denatures judicial opinions". Better to study fewer opinions -- but these in full, warts and all, because much of judicial decision-making is in these warts. And maybe nudge students to writing more clearly and concisely to begin with, to avoid verbosity for the sake of verbosity (and for the sake of obscurization, etc.): decisions, and especially the reasons behind them (which, Posner suggests, often can't be reduced to simple 'legal' ones) should be clearly stated.
To reinforce his point Posner includes an Epilogue: noting that he: "reserved the right to update the book" until after the most recent Supreme Court term ended, and he takes this opportunity and space to point out the weaknesses (to put it politely) in some of the opinions offered up in three just-decided cases -- a nice little closer-to-editorial bonus to the book.
Divergent Paths is cery much an expression of Posner's legal philosophy -- one that has evolved from his earlier, more formalist days --, a full embrace of legal realism and pragmatism and a call for judges to be more open in explaining how they decide their cases. Deriding Chief Justice Roberts' silly baseball umpire analogy, he points out that decisions at the federal court level most obviously aren't ones that permit any easy (or even close) call between (the legal equivalent of) balls and strikes, but rather are likely ones decided by other factors (i.e. not of the parsed-letter-of-the-law kind, even if that's how the decisions are then frequently explained). He makes a strong push for judges considering the real-world implications of any decision -- the law operates in anything but a vacuum, after all -- and one of his simplest but most obvious suggestions is that judges become more intrepid fact-seekers regarding the cases before them, informing themselves beyond merely the information that the parties' lawyers provide. (One can almost imagine him as a Google-pitchman .....)
This is an ambitious book, and its scope sometimes gets the better of it. Posner also occasionally gets carried away with particular points -- entertainingly and even helpfully (his close readings of bad writing and unclear expression at various points, for example), but inevitably somewhat distractingly as well.
He does provide thought-provoking and far-ranging criticism of important institutions and suggests sensible (if not always realistic -- at least to the likelihood of their being adopted) solutions. As always, his command of the American legal scene, in its broadest sense -- from basic theory and practice to the working of its various institutions and the many consequences of court-decisions on all levels -- impresses, and he provides considerable insight into a broad range of issues that many (that stale, unadventurous legal culture ...) too readily overlook and ignore.
While presumably largely targeted at a fairly narrow audience, Divergent Paths should certainly also be of considerable interest to anyone interested in public policy and academic issues. And anyone interested in the American legal system, at any and all its levels (but especially that of the federal courts), should find themselves very entertained and hopefully helpfully provoked by Posner's book.
- M.A.Orthofer, 25 December 2015
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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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