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Divergent Paths: The Academy and the Judiciary
Judges and legal scholars talk past one another, if they have any conversation at all. Academics couch their criticisms of judicial decisions in theoretical terms, which leads many judges―at the risk of intellectual stagnation―to dismiss most academic discourse as opaque and divorced from reality. In Divergent Paths, Richard Posner turns his attention to this widening gap within the legal profession, reflecting on its causes and consequences and asking what can be done to close or at least narrow it.
The shortcomings of academic legal analysis are real, but they cannot disguise the fact that the modern judiciary has several serious deficiencies that academic research and teaching could help to solve or alleviate. In U.S. federal courts, which is the focus of Posner’s analysis of the judicial path, judges confront ever more difficult cases, many involving complex and arcane scientific and technological distinctions, yet continue to be wedded to legal traditions sometimes centuries old. Posner asks how legal education can be made less theory-driven and more compatible with the present and future demands of judging and lawyering.
Law schools, he points out, have great potential to promote much-needed improvements in the judiciary, but doing so will require significant changes in curriculum, hiring policy, and methods of educating future judges. If law schools start to focus more on practical problems facing the American legal system rather than on debating its theoretical failures, the gulf separating the academy and the judiciary will narrow.
The shortcomings of academic legal analysis are real, but they cannot disguise the fact that the modern judiciary has several serious deficiencies that academic research and teaching could help to solve or alleviate. In U.S. federal courts, which is the focus of Posner’s analysis of the judicial path, judges confront ever more difficult cases, many involving complex and arcane scientific and technological distinctions, yet continue to be wedded to legal traditions sometimes centuries old. Posner asks how legal education can be made less theory-driven and more compatible with the present and future demands of judging and lawyering.
Law schools, he points out, have great potential to promote much-needed improvements in the judiciary, but doing so will require significant changes in curriculum, hiring policy, and methods of educating future judges. If law schools start to focus more on practical problems facing the American legal system rather than on debating its theoretical failures, the gulf separating the academy and the judiciary will narrow.
- GenresLawNonfiction
432 pages, Hardcover
First published January 4, 2016
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About the author
Richard A. Posner
128 books179 followersRichard 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.
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.
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Displaying 1 - 2 of 2 reviews
June 8, 2018
As usual, Posner is incisive and enjoyably cranky. However, I was hoping for a lot more academy in a book ostensibly about the academy and the judiciary. I also have to roll my eyes at his insistence that judges should do more independent research on “the Internet,” which seems here to mostly mean Google searches.
February 6, 2016
Judge Posner's insights into the federal judiciary are always welcomed. I've become quite the follower of Judge Posner's works, and would recommend reading "How Judges Think" and "Reflections on Judging" before tackling this book. Although the learning curve is not steep, those books would give the reader a deeper understanding into what Judge Posner considers the flaws in the federal judiciary.
I should start by making clear that I am not a federal judge, nor a federal practitioner—at least I do not practice in federal court, but I found Judge Posner's insights to be invaluable as they are still relatable to state courts as well (at least in my state). Also, I do not believe I am the target audience of this book, which is specifically geared towards law schools and their faculty. Although I do not specifically agree with all of Judge Posner's suggested changes, I did enjoy being able to critically think about the problems he attempts to provide solutions for.
One example I would like to illustrate is Judge Posner's suggestion that more law clerkable students attend courses in judicial opinion writing. The specific problem he is attempting to fix relates to the poor writing seen in opinions, which he attributes to the vast majority of federal judges having first drafts written by their clerks. Although this solution would benefit the quality of judicial opinions, it all but precludes the idea of fixing the problem by encouraging federal judges to write their own opinions. Even the thought of these students (being more likely to be appointed to the bench) will—in 30 years or so—be judges themselves will somehow then continue writing the first drafts of their own opinions misplaces the thought that in the intervening 29 years after the clerkship that they won't pick up the bad habits of letting others do their work (perhaps the non-law-clerkable kids that are working for them).
Judge Posner seems to gloss over the possibility of selecting law clerks that have the style of writing that the judge is looking for, perhaps from a student that is not a top 25% student attending a top-tier law school. In other words, a greater fix to the problems seen in the academy would be to favor different academies... probably a solution that will not be any time coming soon. Mainly because I am assuming that being able to attract the best law students from the best law schools is just as prestigious as being one of those students working for a federal judge.
I do agree that the academy can help out the judiciary (at all levels). I also think that more of the academic writings would be used to better the law, but one problem I think is the accessibility of the law review articles. Judge Posner makes excellent points that the concepts used in the academy are no longer "relatable" to real world situations, but for me (and I would assume a lot of the "small time" practitioners) do not have access to them. They're available on Westlaw and Lexis, but only when you pay more (The HBO of Westlaw if you will).
Instead, I think Judge Posner should have placed more emphasis on the actual practitioners in front of the court at any given time. That is something that law schools can directly affect. Although a small percentage of students will become judges, only a small percentage of students will become something other than lawyers. Although the troubles with the adversarial system are laid out quite well in Divergent Paths, there is nothing in the system that prevents a judge from still conducting her own research and coming to a decision outside of the attorneys positions.
I loved the book, although I am a bit biased towards Judge Posner. I would recommend it, even though it has a small audience. The advantages from critically thinking about the issues raised I would propose will benefit all levels of the law.
I should start by making clear that I am not a federal judge, nor a federal practitioner—at least I do not practice in federal court, but I found Judge Posner's insights to be invaluable as they are still relatable to state courts as well (at least in my state). Also, I do not believe I am the target audience of this book, which is specifically geared towards law schools and their faculty. Although I do not specifically agree with all of Judge Posner's suggested changes, I did enjoy being able to critically think about the problems he attempts to provide solutions for.
One example I would like to illustrate is Judge Posner's suggestion that more law clerkable students attend courses in judicial opinion writing. The specific problem he is attempting to fix relates to the poor writing seen in opinions, which he attributes to the vast majority of federal judges having first drafts written by their clerks. Although this solution would benefit the quality of judicial opinions, it all but precludes the idea of fixing the problem by encouraging federal judges to write their own opinions. Even the thought of these students (being more likely to be appointed to the bench) will—in 30 years or so—be judges themselves will somehow then continue writing the first drafts of their own opinions misplaces the thought that in the intervening 29 years after the clerkship that they won't pick up the bad habits of letting others do their work (perhaps the non-law-clerkable kids that are working for them).
Judge Posner seems to gloss over the possibility of selecting law clerks that have the style of writing that the judge is looking for, perhaps from a student that is not a top 25% student attending a top-tier law school. In other words, a greater fix to the problems seen in the academy would be to favor different academies... probably a solution that will not be any time coming soon. Mainly because I am assuming that being able to attract the best law students from the best law schools is just as prestigious as being one of those students working for a federal judge.
I do agree that the academy can help out the judiciary (at all levels). I also think that more of the academic writings would be used to better the law, but one problem I think is the accessibility of the law review articles. Judge Posner makes excellent points that the concepts used in the academy are no longer "relatable" to real world situations, but for me (and I would assume a lot of the "small time" practitioners) do not have access to them. They're available on Westlaw and Lexis, but only when you pay more (The HBO of Westlaw if you will).
Instead, I think Judge Posner should have placed more emphasis on the actual practitioners in front of the court at any given time. That is something that law schools can directly affect. Although a small percentage of students will become judges, only a small percentage of students will become something other than lawyers. Although the troubles with the adversarial system are laid out quite well in Divergent Paths, there is nothing in the system that prevents a judge from still conducting her own research and coming to a decision outside of the attorneys positions.
I loved the book, although I am a bit biased towards Judge Posner. I would recommend it, even though it has a small audience. The advantages from critically thinking about the issues raised I would propose will benefit all levels of the law.
Displaying 1 - 2 of 2 reviews