In Reflections on Judging, Richard Posner distills the experience of his thirty-one years as a judge of the United States Court of Appeals for the Seventh Circuit. Surveying how the judiciary has changed since his 1981 appointment, he engages the issues at stake today, suggesting how lawyers should argue cases and judges decide them, how trials can be improved, and, most urgently, how to cope with the dizzying pace of technological advance that makes litigation ever more challenging to judges and lawyers.For Posner, legal formalism presents one of the main obstacles to tackling these problems. Formalist judges--most notably Justice Antonin Scalia--needlessly complicate the legal process by advocating "canons of constructions" (principles for interpreting statutes and the Constitution) that are confusing and self-contradictory. Posner calls instead for a renewed commitment to legal realism, whereby a good judge gathers facts, carefully considers context, and comes to a sensible conclusion that avoids inflicting collateral damage on other areas of the law. This, Posner believes, was the approach of the jurists he most admires and seeks to Oliver Wendell Holmes, Louis Brandeis, Benjamin Cardozo, Learned Hand, Robert Jackson, and Henry Friendly, and it is an approach that can best resolve our twenty-first-century legal disputes.
Richard Posner is Senior Lecturer in Law at the University of Chicago Law School.
Following his graduation from Harvard Law School, Judge Posner clerked for Justice William J. Brennan Jr. From 1963 to 1965, he was assistant to Commissioner Philip Elman of the Federal Trade Commission. For the next two years he was assistant to the solicitor general of the United States. Prior to going to Stanford Law School in 1968 as Associate Professor, Judge Posner served as general counsel of the President's Task Force on Communications Policy. He first came to the Law School in 1969, and was Lee and Brena Freeman Professor of Law prior to his appointment in 1981 as a judge of the U.S. Court of Appeals for the Seventh Circuit, where he presided until his retirement on September 2, 2017. He was the chief judge of the court from 1993 to 2000.
Judge Posner has written a number of books, including Economic Analysis of Law (7th ed., 2007), The Economics of Justice (1981), Law and Literature (3rd ed. 2009), The Problems of Jurisprudence (1990), Cardozo: A Study in Reputation (1990), The Essential Holmes (1992), Sex and Reason (1992), Overcoming Law (1995), The Federal Courts: Challenge and Reform (1996), Law and Legal Theory in England and America (1996), The Problematics of Moral and Legal Theory (1999), Antitrust Law (2d ed. 2001), Law, Pragmatism, and Democracy (2003), Catastrophe: Risk and Response (2004), Preventing Surprise Attacks: Intelligence Reform in the Wake of 9/11 (2005), How Judges Think (2008), and A Failure of Capitalism: The Crisis of '08 and the Descent into Depression (2009), as well as books on the Clinton impeachment and Bush v. Gore, and many articles in legal and economic journals and book reviews in the popular press. He has taught administrative law, antitrust, economic analysis of law, history of legal thought, conflict of laws, regulated industries, law and literature, the legislative process, family law, primitive law, torts, civil procedure, evidence, health law and economics, law and science, and jurisprudence. He was the founding editor of the Journal of Legal Studies and (with Orley Ashenfelter) the American Law and Economics Review. He is an Honorary Bencher of the Inner Temple and a corresponding fellow of the British Academy, and he was the President of the American Law and Economics Association from 1995 to 1996 and the honorary President of the Bentham Club of University College, London, for 1998. He has received a number of awards, including the Thomas Jefferson Memorial Foundation Award in Law from the University of Virginia in 1994, the Marshall-Wythe Medallion from the College of William and Mary in 1998, the 2003 Research Award from the Fellows of the American Bar Foundation, also in 2003 the John Sherman Award from the U.S. Department of Justice, the Learned Hand Medal for Exellence in Federal Jurisprudence from the Federal bar Council in 2005, and, also in 2005, the Thomas C. Schelling Award from the John F. Kennedy School of Government at Harvard University.
Reflections on Judging is a superlative book. Richard Posner assesses the strengths and weaknesses of the federal judiciary with clarity and insight. He is evenhanded and pragmatic. Most importantly, Posner is an excellent writer. He skillfully blends his knowledge and analysis with a punchy, unadorned style. I read the book with glee, Posner is such a masterful technician.
Aside from some early personal memoir, Reflections on Judging focuses on complexity in the federal judiciary, the challenges it poses, and a proposed remedy, in the form of judicial realism.
Posner sees two forms of complexity that challenge the judiciary: internal complexity, in the form of judicial bureaucracy, confusion, and speculation; and external complexity, in the form of technological change or sophisticated systems like economics, that shapes the matters that judges handle.
Posner describes the techniques that judges rely on to avoid external complexity. They defer to lower courts (86) "adopt multifactor tests" (86), "recast issues in semantic terms" (87), or they "wing it, substituting a guess for data" (88). When Posner discusses federal sentencing guidelines and judicial discretion, he laments the ignorance among federal judges of social scientific research on crime and sentencing (68).
Internal complexity is the result of ballooning bureaucracy, incompetence, and the failure to comprehend the internal effects of judicial decisions (on the growth of caseloads, for instance). Posner fingers the Bluebook as an example of internal complexity. He argues that its growth over several editions from 26 pages to 661 pages, stems from bureaucratic pressure (96), profit motive (103), and, most damningly, "the reflex desire of every profession to convince the laity of the inscrutable rigor of its methods" (104).
The book then discusses judicial formalism and realism. Both are decision-making processes. Most of the time, decisions are made formalistically (107). However, due to a range of factors (ambiguous legislation, the difficulty of amending the Constitution, common law, a stratified legal system (107)), appellate courts must occasionally take a more active, even legislative role, in determining cases and, consequently, the law.
In these matters, the formalist judge writes an opinion that is circumspect in its recitation of the lower courts' decisions, the facts of the case, and the arguments before the court (111-112). It then "specifies and explicates the applicable higher-level rules…, elaborates upon those and other doctrinal materials by copious reference to and quotation of authoritative texts, applies the rules extracted from these materials to each of the nonfrivolous arguments made by the parties" (112). It heavily relies on footnotes, insists on its correctness, and maintains a formal style (112). When an argument cannot be neatly resolved through appeals to logic, judges "resort to armchair empiricism in lieu of social-scientific analysis" (112). Posner's ironic tone expresses his intense skepticism of formalism as a judicial method. Its studious approach and seemingly exhaustive inquisition conceals its interpretive weaknesses.
The realist judge, in contrast, writes opinions that echo the purpose of the text of a law and avoid legal jargon; the judge seeks to understand the consequences of their decisions, "has an acute sense of the plasticity of American law, is acutely conscious too of the manifold weaknesses of the American judicial system and wants to do what he can to improve it. He does not draw a sharp line between law and policy, between judging and legislating, and between legal reasoning and common sense" (120). The realist judge is (surprise, surprise) realistic, active, and fact-oriented.
By contrast, Posner views formalism as passive, and an insufficient response to growing complexity. He does, however, consider a different passive strategy to cope with complexity: judicial self-restraint. Posner defines it for his purposes as "a marked reluctance to invalidate legislation on constitutional grounds" (150). He sketches the history of this "constitutional restraint" from James Bradley Thayer to his intellectual progeny: Holmes, Brandeis, Frankfurter, and Bickel.
The chapter is the strongest in the book, and, in some ways, gives away the game. If Posner is anything, he is a federalist. He claims that Holmes and Brandeis' restraint was grounded in "enabl[ing] the states to function as policy laboratories" (158). When he later criticizes incorporation, he says, "It not only preempted state legislative decisions but ended experimentation at the state level in the preempted areas" (173). Posner is clearly sympathetic to the legislative prerogatives of the states. Of course, the federalist label is inadequate. As just one piece of evidence, Posner agrees with the decision in Bush v. Gore (if not the grounds for it). He views the decision as pragmatic, fearing that indecision in the Supreme Court would have resulted in a political morass (briefly mentioned at page 228, and explored in greater depth in his book Breaking the Deadlock: The 2000 Election, the Constitution, and the Courts).
In later chapters, he dissects textual originalism (closely analyzing Antonin Scalia and Bryan Garner's Reading Law: The Interpretation of Legal Texts) and the "flights of imaginative fancy" of liberal jurisprudence (seen in America's Unwritten Constitution by Akhil Amar) (219). Posner lays waste to both. He sees textual originalism as the embodiment of judicial passivity and a thin disguise for political conservatism (179). He views the method described by Amar as so interpretively flexible as to be meaningless. Both Scalia and Amar rely on volume as a means to convey the importance of their ideas, both are indifferent to empirical reality, and both insist that their approaches are objective, nonideological, and democratic (229-230). Most damningly to Posner, there methods are wholly inadequate as responses to complexity in the judiciary:
"Scalia makes judging too difficult by telling judges to master and apply a baffling and ultimately fruitless system for avoiding engagement with reality. He is a complexifier, though it is less likely that complexity guides his judicial votes (and those of others of his school of thought) than that it conceals the biases that actually generate those votes. Amar, on the other hand, makes judging too easy. A judge who takes Amar's book seriously will have free rein to decide any case any way he wants." (235)
According to Posner, the decline of realism and the growth of formalism is due in part to creeping managerialism on the federal bench. Many, perhaps most, federal judges do not write their opinions, relying instead on their clerks to draft an opinion which they then edit. It is unsurprising that formalism is dominant when clerks must formulaically mold their writing to the positions taken by their bosses. Of course, "judge-editors" do not "realize that the process of writing, which means searching for words, for sentences, in which to express meaning, is a process of discovery rather than just of expressing preformed ideas; that it reveals analytical gaps; that it gives rise to new ideas; and that fluency in writing comes largely from---writing" (240).
Posner is a celebrant of American literary culture, and he bemoans its decline (246). Despite his embrace of literary culture and the literary-critical method as an analogue for the judicial-interpretive process, he notably overlooks a significant side effect of literary engagement. Whether he acknowledges it or not, reading, especially fiction, is a vehicle for empathetic understanding. Moreover, reading brings one in touch with ambiguity. A given text may be ambiguous, but, more importantly, those who read frequently and widely will engage with texts that they disagree with or disdain. In the process of reading such a text, a reasonable person will consider the differing positions and possibly seek greater knowledge. As such, difference can increase one's engagement with an issue. This exercise may reduce one's ideological or political predispositions.
In Posner's reflections on writing and literacy, he reveals his candor. He is never anything but forthright. His honesty can be refreshing, as when he writes, “The American political process at all levels is corrupted by money, interest groups, public ignorance and apathy, and inherent limitations of representative democracy, in which people vote for persons rather than policies" (172). Posner may be a judicial realist, but he's also just a normal realist.
Reflections on Judging epitomizes the very qualities that Posner demands from federal judges. The book is grounded in facts (including a substantial body of social scientific research related to judicial practice), thorough, well-written, and candid. These qualities are the cornerstone of good judgment, and they should be the cornerstone of the federal judiciary.
Another book in the realist legal tradition. It’s no Path of the Law or Nature of the Judicial Process -- though I sincerely doubt Posner set out to write such a thing (if he had, he would have taken fewer swipes at Scalia, Amar, and The Harvard Bluebook) – but it carries on the tradition of pulling back the veil, a bit, to how judges do or should decide their cases.
There were parts that resonated with me. Courts make things too complex; law is not really that hard; hard cases aren’t usually so hard once you’re close enough to pull off the mask (though MAN it can take a lot of work to get that close); there’s usually no need to list the parties’ contentions; don’t think your opinions are better just because they are longer; don’t rely on the briefs to tell you what the law is.
There were parts that were less resonate. I was amused by his loathing of The Bluebook. I tend to agree that it’s gotten silly; like trying to keep all the permutations of the X-Men family tree straight. Mastering its intricacies teaches you nothing about law or storytelling, though it is a signal of a certain type of mind. But it’s hard for me to take it seriously as an impediment to the judicial process.
Sometimes, this book seemed to be a clarion call to judges to pair away all the things from opinions that had nothing to do with the outcome; just made the opinions feel more complicated, weighty and distant. Sometimes, this book seemed to be a swipe at judicial delegation of writing duties to chambers’ staff. Sometimes, this book seemed to be a sincere warning that the Bluebook and Justice Scalia are taking us to the dark side.
Read Sam's review: as I read the book I was more and more impressed with the accuracy of Sam's review. I cannot believe I enjoyed this book this much. It's definitely an obscure topic for me, but Posner is an excellent writer and an independent thinker. The book was compelling and I was sorry when I finished it.. I didn't enjoy the last chapter as much as the rest of the book, and it would have helped me if he had an appendix with summaries of key cases which he doesn't explain in depth.(e.g.. "Lochner"). I think physicians in general tend to be realists rather than formalists, but in psychiatry at least, I'm in favor of clinicians having a good understanding of the life context of the patient's issues, not just whether this patient meets the criteria for whatever diagnosis, and I think this is similar to what Posner is talking about in the legal realm.
Characteristically excellent. And I say that as someone who often disagrees with Posner. I found particularly engaging his jeremiad against creeping managerialism in the chambers of federal judges and in favor of judges, especially appellate judges, once more writing their own opinions. So too the passages where Posner argues that law is an essentially literary profession, which can't really be squared with the felt need for mechanical, algorithmic decision making. Strongly recommended for those interested in the work of the courts.
His opinions are interesting, but the writing is turgid.
It is ironic: Posner argues that judges can really learn how to write well and should therefore write their opinions much more than most federal appellate court judges do now (because instead the law clerks are writing their opinions). However, this book's writing is really quite the slog, as opposed to other nonfiction I read.
A somewhat technical book. Part memoir, tips and general observations on judging. Not for everyone. Despite having an interest in the law, I found some parts of the book are a bit dry and get technical. I enjoyed the book generally.
In particular, I found his sections criticizing both Amar and Scalia very interesting. I like Posner's digs at both the Invisible Constitution and Unwritten Constitution, two books I found less than satisfying. I find great appeal in Posner's urging to turn away from formalist thought (that kind that generalizes and seeks abstract principles) towards realist thought, which amongst other things tries to root itself in empirical data and evidence. It was interesting to see Posner describe judicial restraint, from its intellectual foundation from Trayer to the various judges that practiced their variations. I have yet to actually work on the blue book, but I enjoy Posner's critique of it, which demonstrates his economic thinking both in his cases and towards the practice of law in general. I also thought his observations on judges, (the increase of clerk written opinions, and the increasingly abstract bent of the legal academy) insightful, if unrelatable at the moment. It's definitely a practical book, pointing to tips on managing clerks, instructing juries and writing simple opinions.
If anything the book has inspired me to follow its author more closely. It's generally insightful, controversial and interesting (Posner has interesting opinions on topics as wide as patents for software to semantics to the use of google maps in litigation, and he seems to calls it as it is). My only complaint is that the topics are so wide that it's hard to see the common thread behind the topics. The general theme is that the external world is becoming more complicated, and the judicial system needs to address that head on, not generate internal complexity (through formalism) to escape it. I'll probably reread this book later on when I engage in the profession more. Maybe it's a catcher in the rye sort of book for law students!
I know pretty much nothing about judicial theory and history, beyond the major cases covered in American history courses. From a position of ignorance, this book appears to be a fair introduction to recent major trends, namely the divide between formalist and realist approaches. The focused chapters on opinion writing and the judiciary's lacking response to increased complexity, which are almost written as how-to guides for potential judges and lawyers, are lucid, interesting and important. There's a section where he rewrites a convoluted opinion in the plainest English possible that makes you wish the entire legal culture was different. Posner's foibles, particularly his tendency toward parenthetical asides, catty attacks on other judges and beating dead horses, are entertaining.
However, there are some parts of the book that were grating, over-complicated or poorly organized. One chapter, titled Interpretation, is an almost line-by-line critique of one of Antonin Scalia's books, which is almost impossible to get through unless you have prior context. And, for an author who champions clarity, writing for lay people and avoiding unnecessary presumption, Posner uses a lot of unnecessary foreign phrases (such as a good judge is not a good legal academic manque) and references lots of relatively obscure literature.
The essays in this collection--maybe it is a book?--are engaging because Judge Posner is always engaging. He recommends a pragmatist approach to jurisprudence, modeled on his interpretation of the practices of other admirable jurists: Oliver Wendell Holmes, Louis Brandeis, Benjamin Cardozo, Learned Hand, Robert Jackson, and Henry Friendly. The result is a clear jurisprudence which is a lucid alternative to the current formalism attributed to Justices and other jurists who attempt to follow the formalism advocated by Justice Scalia. Judge Posner makes a clear argument for why his approach is preferable, which is not simply dismissive of formalism. His pragmatics of legal realism is persuasive, and actually describes the judging I generally most respect when I come across it in practice.
An interesting book: part biography, part plea for judicial pragmatism, part mish-mash of Posner's writings between 2008 and 2011 (let it not be said that he allows anything to go to waste!). If you've read Posner book, you've read them all (save perhaps for "Not a Suicide Pact," which is a tightly focused book, or "An Affair of State," which is a really interesting book for a host of reasons), but that doesn't mean you shouldn't read this one, too.
A very thoughtful and provocative book on ways to deal with internal and external complexity of the legal profession. Well recommended for every lawyer, be he judge or consultant. The only issue is that sometimes the author is more interested in caustic criticism of his opponents’ works than in advancing his main theme, but those works do deserve some pricking.
A good insight into what Posner considers the cause of complexity in judging in America today. And what needs to be done to deal with the complexity. A good read with interesting ideas.