How Judges Think (Pims - Polity Immigration and Society Series) Paperback – 18 May 2010
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Posner is unique in the world of American jurisprudence, a highly regarded U.S. appellate judge and a prolific and controversial writer on legal philosophy. Opinionated, sarcastic and argumentative as ever, Posner is happy to weigh in not only on how judges think, but how he thinks they should think. When sticking to explaining the nine intellectual approaches to judging that he identifies, and to the gap between legal academics and judges, and his well-formulated pragmatic approach to judging, Posner is insightful, accessible, often funny and a model of clarity. Publishers Weekly 20080211 Posner's latest book, How Judges Think, is important, if only because it's Posner looking at his own profession from the inside. Two of the chapters, "Judges Are Not Law Professors" and "Is Pragmatic Adjudication Inescapable?," are worth the price of admission by themselves. The book can be read as one long screed against the jurisprudence of Supreme Court Justice Antonin Scalia, and stands as a refutation to those who believe the category of conservative can lazily be applied to a mind as independent as Posner's. --Barry Gewen New York Times on the Web 20080709
From the Back Cover
From the book: Ivan Karamazov said that if God does not exist everything is permitted, and traditional legal thinkers are likely to say that if legalism (legal formalism, orthodox legal reasoning, a "government of laws not men," the "rule of law" as celebrated in the loftiest "Law Day" rhetoric, and so forth) does not exist everything is permitted to judges--so watch out! Legalism does exist, and so not everything is permitted. But its kingdom has shrunk and greyed to the point where today it is largely limited to routine cases, and so a great deal is permitted to judges. Just how much is permitted and how they use their freedom are the principal concerns of this book. ... I am struck by how unrealistic are the conceptions of the judge held by most people, including practicing lawyers and eminent law professors, who have never been judges--and even by some judges. This unrealism is due to a variety of things, including the different perspectives of the different branches of the legal profession--including also a certain want of imagination. It is also due to the fact that most judges are cagey, even coy, in discussing what they do. They tend to parrot an official line about the judicial process (how rule-bound it is), and often to believe it, though it does not describe their actual practices. This book parts the curtain a bit.See all Product Description
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Posner's book is a collection of articles published elsewhere; Its main theme is constructed from Law articles, a survey of the Supreme Court's 2004 term, various book reviews, and even, I think, Blog posts. The end product offers fascinating discussions of many topics, but it feels somewhat disjoint, as if Posner was constantly being sidetracked, albeit in interesting directions.
Posner's main argument, one that would find no disagreement from me, is that American Judges are not Formalists. Formalists argue that legal decisions are (or should be) made in an algorithmic fashion - that there is only one right answer, and that it is independent of the Judge's personality and politics.
That judicial decisions are not Formally determinable, at least in the most interesting cases, has been argued for centuries. Posner demolishes some of the tropes of Formalism old ("reasoning by analogy" pp. 181-190) and new-ish ("Originalism" pp. 343-345) and offers statistical evidence that US judges are not Formalist: the opinions of judges appointed by Democratic administrations differ from those of Republican appointed ones.
But if judges are not Formalist, what are they? Are there only two choices - Formalist(unfeasible in many cases) or political (As Justice Scalia suggests in an article titled "Originalism - the Lesser Evil")? In this and other writing, Posner offers an alternative: Pragmatism.
Pragmatism can help constrain Judges and decide cases in ways that would not seem to be political. A Posnerian Pragmatist should judge cases in which the Formalist apparatus breaks down in three ways:
First, in some fields there exists a "limited... field-specific ideological consensus" (p. 373). In contracts and torts, property law and bankruptcy law - the traditional domains of the Common Law - the basic ideological issues are agreed upon. Therefore judges can use instrumental reasoning as to how best achieve agreed upon goals.
Second, in areas upon which there is little consensus, such as Constitutional Law, the Posnerian Judge would be a minimalist. Subjecting oneself to Oliver Wendell Holmes's " "Puke Test" - a statue is unconstitutional only if it makes you want to throw up... a conviction of error is not enough - there must be revulsion" (p. 288). Judges would be mostly deferential to the "political" branches.
The third, most interesting element of Posner's Jurisprudence is the reliance on Social Science. Posner believes that by immersing oneself in the facts of the case, and in relevant scientific knowledge, one can sometimes transcend the personal dimension of the decision. Essentially, the social sciences can help move an issue from the second category - that of contested moral principles - to the first, thus achieving
an "apolitical" or Pragmatic, ruling.
Pragmatism is not a cure all for legal dilemmas; They can have more than one pragmatic answer. Take the Kelo case (Kelo v. City of New London, pp. 314-320). New London used its power of "eminent domain", forcing landowners to sell land to it at market prices, and then gave the land for public contractors to use in an urban development project. This appropriation of private property was understandably unpopular among owners, who probably estimated the land at a higher value than its market value - otherwise, they would have sold it willingly.
The economic justification for thus appropriating land is the `hold out' problem - sometimes, particular lots are necessary for a project. If they are, the owners, facing no competition, can hold out for a very high price. The power of "eminent domain" is thus an anti-monopoly device.
One pragmatic solution to the case would have been asking whether the situation in Kelo was a `hold out' situation. If so, justification existed for the use of the eminent domain. If not, its use was essentially subsidizing private contractors at the expense of the owners.
Instead of thus resolving the case, the Supreme Court refused to intervene in a political issue. That result, Posner reports, was a pragmatic triumph also. By refusing to defend owners against government action, the Court pushed owners to the public sphere, where they can fight the government's power "The responses of Congress and the states will constitute a series of social experiments from which much will be learned about the proper limits on eminent domain" (p. 319).
Is Posner's prognosis, limited as it is, only normative or also positive? Are US Judges really pragmatic? I think that, unfortunately, they are not. First, the Justices in the Kelo case showed little interest in the Social science behind the use of eminent domain. Application of social sciences in other cases is faulty and undisciplined (pp. 297-299). All the current Justices had been Court of Appeal Judges - did they forget their pragmatism when promoted? The Justices are not a representative sample of US judges, but is there any reason to think they are less empirically inclined?
Indeed, despite Posner's assurance that "Judges are curious about [social reality]... they want the lawyers to help them dig below the semantic surface." (p. 228), I wonder why we can't see that in practice. Law is a highly competitive business. If social science would give lawyers an edge in winning cases, one would think competition would teach lawyers how to use it. Factual, "Brandeis", briefs have been around... well, since Brandeis. Why aren't they making more of an effect?
My guess is that Posner is still an anomaly. Most American judges are not Pragmatists. Maybe we will "overcome law" some day, but we aren't there yet.
'In discussing a case that invalidated the exclusion of homosexuals from the military, Beatty approvingly remarks that the court "noted the lack of `concrete' and `actual or significant' evidence that allowing gay men to enlist in the armed forces would prejudice its morale, fighting power, or operational effectiveness in any way." He does not require that there be "concrete" and "actual or significant" evidence that homosexuals are harmed by the exclusion. Nor is he bothered by a lack of concreteness when he says that "laws that establish a broadcasting spectrum [must] guarantee that the full spectrum of opinion in the community will be heard." What is "the full spectrum" of opinion, and who is to decide? Must every lunatic have access to a broadcast studio? Beatty contends that government has a constitutional duty to subsidize religious schools but "may make funding conditional on religious schools agreeing to teach the same curriculum that is used in state-run schools." If the curriculum is identical, in what sense are they religious schools?' (internal footnotes omitted)
The point, here as throughout How Judges Think, is to drive a spear into the side of judicial and scholarly hypocrisy. The particular target here, Beatty, is no more or less hypocritical than the rest of us: judges and legal scholars, as much as anyone, pretend that their opinions are more than just opinions. Judges -- especially Supreme Court Justices -- have a fancy term for this, which we as Americans have come to sanctify as The One True Way Of Judging. The fancy term is `textualism' or `originalism' or (as Posner calls it) `legalism.' Legalism is meant to keep the judges out of judging: they're supposed to read the facts of the case, read the relevant precedents, read the text of any relevant statutes, maybe read the legislative history, then decide the case syllogistically. A judge becomes an automaton lacking independent will. This is supposed to keep politics out of the court, and keep us closer to the ideal of "a nation of laws, not men." The law, after all, shouldn't depend on who's enforcing it. This isn't the way actual judges or actual courts work, says Posner; he spends the next 350 pages crisply and efficiently taking down any number of legalist conceptions of judging. He replaces them with his own description of how judging actually works.
Judges also don't spend much time at all deliberating -- at least not in groups. A judge may be internally conflicted over a case, and at times he may actually change his mind on the basis of what others say. But not normally. Normally -- like poor Mr. Beatty, above -- he's either deliberately or subconsciously deploying judicial reasoning, or the appearance of judicial reasoning, in the service of what he already believes to be true. The ultimate source of judicial opinion is emotion: the race you were born into, the economic class you inhabit, whether you worked as a prosecutor or a defense attorney before you reached the Court.
If judges find sophisticated-sounding justifications for conclusions that they reached at the start, what's to stop them from running totally off the rails? Why can't a judge say whatever he wants? Here Posner walks through the range of `judges' -- from paid arbitrators through Federal appellate-court judges, all the way to the Supreme Court. An arbitrator has certain economic motivations: if he's known as thorough and unbiased, he'll get more business; if he tends to land on compromises that make both sides happy, he'll get still more. District court judges are subject to review by the appellate courts. Federal appellate judges have life tenure, insulating them from public opinion -- but they're subject to review by the Supreme Court. Supreme Court Justices themselves have a cushy job with limited caseloads and no possibility of review. So where do Supreme Court justices get *their* constraints? The public: if the Court veers too far into cloud cuckoo land, it can expect that the people will revolt and clamor for overriding legislation. The Supreme Court still has constraints.
Judges are "constrained pragmatists," in Posner's terminology. They must choose among conflicting interpretations of the common-law and statute history; a pragmatist chooses by considering the consequences of each interpretation in the light of the law's *intent*, if not its wording. A pragmatic judge doesn't get overly bogged down in the words of the law, when those words are an imperfect guide to what the law was supposed to achieve. This sounds similar to objectives-based regulation: specify the outcome and the intent, and focus less on the implementation. The realization behind this is that society changes quickly, and laws that fixate on the present moment's circumstances will quickly become obsolete.
This was the weakest part of Posner's argument: legislation, says Posner, moves more slowly than the courts do, so it's natural to place some of the burden of its interpretation on the courts. The process of amending the Constitution is tortuous, but Posner never makes it clear why this is a bad thing, or whether legislators actually desire to make the judicial branch a second branch of execution. Posner's argument isn't absurd. Even pragmatist judges operate under constraints, after all: if they strike down perfectly constitutional legislation, remedies up to impeachment are theoretically available. And the public has been trained to be on the lookout for `activist judges'. But to base a large part of the argument for pragmatism on a bare assertion that "it works out better that way for everyone" is odd.
His analyses of how a pragmatist would resolve any number of cases are fascinating. Take the Kelo case, for instance, which allowed the city of New London, Connecticut to seize land by eminent domain for private development. A pragmatist assesses a claim of eminent domain by looking at the original intent of the law, and the economic consequences of granting or withholding the seizure right. The original intent, says Posner, was to prevent individual people from holding a big public-works project hostage: if I'm building a several-thousand-mile-long road, everyone in its path knows that their cooperation is vital. They have, in other words, something like monopoly power, and they can demand exorbitant sale prices for their land. If there's no danger of "holdouts," as these are called, there's no reason to grant the state eminent domain. Moreover, a pragmatist would examine the consequences of granting eminent domain in these cases, would realize that the market is better able to assign just compensation to land sales than the state itself is, and would in effect hand the case over to the market for resolution.
A pragmatist judge, it seems to me, is expected to exercise remarkable foresight. Not only must he know enough about the common and statute law to genuflect appropriately at the law's majesty, but now he must also be able to guess the long-term consequences of a particular taking. This means he must be rather thoroughly educated in economics and statistics. Posner might reply here that it's six of one, half-dozen of another: a non-pragmatist judge only has to convert his gut feelings into the language of precedent, but the outcome of this simpler process is decidedly worse than what a pragmatist -- with his wider scope -- comes up with. If I have Posner right, there's little evidence for this claim in How Judges Think. Indeed, Posner repeatedly critiques judges for a lack of interest or skill in the exact sciences. So what's to make us think that an unschooled pragmatist judge would come up with better decisions overall? Maybe "unschooled pragmatist" is a contradiction in terms?
This reliance on economics, statistics, and science makes it all the more jarring when Posner throws down bare assertions -- as, for instance, when he asserts (p. 306) that the "total misery of the wrongly convicted was not lessened" when the Court increased the rights of criminal defendants in the '60's. Total misery decreases if the average wrongly convicted defendant spends less time in jail, or if fewer people are wrongly convicted to begin with. Posner asserts (with evidence) that defendants spent more time in jail after the '60's, in part because of a legislative backlash against the courts. (It could also be because violent crime increased. Posner himself doesn't engage in much convincing heavy-duty statistical analysis, though he cites plenty.) For his claim to hold, he has to show that the probability of wrongful conviction didn't fall enough to compensate for increased jail time. This he does not do. In general, the pretensions of economists invite skepticism during their falls from the empiricist wagon.
One final note from Posner that I found especially interesting: academics, he says, have grown increasingly distant from the actual practice of judging. One consequence is that law students learn the very artificial academic view of how judicial decisions are made. Law students, in a word, are trained to be legalists. They come to expect that judges are the automata they read about in class. Students learn that if they want to convince judges of anything, all they need to do is read a long litany of precedent; the judge will be forced, through logic alone, to accept their conclusions. They import this conceit into the courtroom and get nowhere with it. If legal academia were more in line with how judging actually worked, law students would learn to address judges pragmatically. As it is, even a decorated legal scholar like Larry Lessig -- a man who clerked for Scalia and Posner, in fact -- didn't understand quite how to talk to Supremes:
"Here was a case that pitted all the money in the world against *reasoning*. And here was the last naïve law professor, scouring the pages, looking for reasoning."
First, he wants to review existing explanatory theories of judicial behavior: the attitudinal; sociological; economic; organizational; pragmatic; legalistic; and policy choice. Posner here seeks to demonstrate that no one of these theories can wholly explain judicial behavior, and that some other approach he suggests is better suited to do the job.
Posner is quite a creative fellow, extremely well versed in a variety of literatures in addition to the legal. For example, he discusses judges as workers in the judicial system, quite an innovative approach. Next he focuses on judges as "occasional legislators" and what ideology a legislating judge employs. Unconscious preconceptions and intuitions are major topics in this discussion. Posner then shifts to what external and internal constraints limit judicial freedom of decisional action, including precedent, tenure and salary issues, and internal constraints (what we political scientists refer to as "role theory" and small group analysis). Along the way he takes some effective potshots at folks such as LLoyd Weinreib (who argues analogy as the key to legal analysis), the legal process school, "neutral principles" and the Scalia approach to constitutional interpretation. Interestingly enough, law professors are not a major constraint, because they have segregated themselves out of studying and interacting with judges. This is one of the most perceptive chapters in the book.
By chapter 9, Posner is zeroing in on one of his favorite topics--pragmatic adjudication. He argues that pragmatic policy concerns often are the best device for explaining judicial actions because Posner believes these considerations should guide judges. Of course, Judge Posner has written literally reams on this topic, but I found this one of his best discussions. Finally, Posner targets the Supreme Court, "a political court" as he terms it. The limited impact the Court has in policing the Courts of Appeals constitutes an interesting theme here. Posner follows this up with a fine review of Justice Breyer's "Active Libery" and a fascinating discussion of what he terms "judicial cosmopolitanism," or how much foreign legal concepts should play a role in American judicial decision making. This chapter includes highly critical discussions of Beatty's "Ultimate Rule of Law" and Israeli CJ Aharon Barak's "The Judge in a Democracy." Posner can throw critical right jabs with the best of them.
This is a very long book (at around 377 pages). But is it packed with thought stimulating material and arguments, as well as exceptionally useful bibliographic references in the notes (which are actually at the foot of each page). Anyone interested in American judges and what they do, and why they do it, would consider this volume as essential reading.
Going beyond that, Posner also takes clear aim at the legal academy for mistaking the stated reasoning in legal opinions as the cause of a particular decision, rather than its effect. He makes it abundantly clear that legal scholars have lost connection with the judiciary and potentially the legal profession as a whole.
However, I can only give the four stars because the book desperately needed a good editor. Because the chapter are mostly previously published material, they are quite repetitive and probably make the book fifty pages longer than it needs to be. It would have been much better if Posner could have made the argument flow more coherently into a single argument instead of a dozen stand alone claims.
At a time when the merely thoughtless insist that the "law be applied as written" (how, exactly, does one apply the phrase "equal protection" as written and divorced from context?)this refreshing burst of candor and common sense presented by the greatest legal mind of the past 50 years is critically important reading.