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Strengthening the Rule of Law Requires More, Not Less, Reliance on Formalism

Richard A. Posner is the greatest law professor ever to have become a judge in the United States. And he has proven to be the most influential appellate jurist below the Supreme Court who was ever a law professor. Indeed, by the most telling measure—citations by other courts—he holds more sway over his colleagues than any other jurist on the federal courts of appeals. Thus, it would seem that no one is better equipped to write about the relation between the academy and  the judiciary. Sadly, however, in Divergent Paths: The Academy and the Judiciary he has produced a disappointing and puzzling book.

Two theses predominate.

The first is that judges are not much moved by formal arguments about the law. Instead, they are influenced by facts and political preferences. Therefore laws schools should stop focusing so heavily on teaching formal legal methods. Instead they should investigate judicial biographies to figure out what makes judges tick and give students a better background in marshaling facts and rhetoric.

His second thesis is that the judiciary faces a lot of problems even beyond an excessive attachment to faux formalism—difficulties from case management to assessing complex facts. Therefore law professors should shift their scholarship to address these problems and law schools should provide more judicial education to help the bench out.

Posner’s premise that most judges are closet legal realists who are decisively moved by ideology rather than legal doctrine has not been proven by Posner or indeed by anyone else. Judges say they are making decisions on the basis of text and doctrine internal to the law rather than on the basis of external factors. Perhaps the judicial focus on these formal materials is a matter of false consciousness, but Posner presents little evidence of this, either.

To be sure, judges are surely somewhat influenced as to how they decide cases by their political priors, but it does not follow that law schools should spend more time studying judicial priors than studying the general concepts and logic of the law. First, it is hard, if not impossible, to change a judge’s worldview, but an advocate making a case before a judge may be able to change that judge’s understanding of the content of legal doctrine. Moreover, there may be as many judicial perspectives as there are judges, so it would be no easy matter, for pedagogical purposes, to capture them all. Thus, at the margin it makes more sense to improve doctrinal advocacy rather than attempt to change or even understand diverse judicial worldviews.

Second, law schools are in the business of educating their students to make a living not in Posner’s jurisdiction but in the wider world. Most legal issues are not the hard cases that reach the appellate level or the Supreme Court. Doctrinal analysis is key to advising clients on most matters. Posner focuses on the resolution of appellate cases, but that is not the bread and butter of law for most lawyers. Trust and estate lawyers, for instance, may go years without encountering any litigation at all.

And Posner’s assertion that distinctive legal methods are of little, if any, value to determining hard cases is belied by some of the very cases he discusses. For instance, he writes about a 1968 statute that came under scrutiny in a case heard in the U.S. Second Circuit in 2003, United States v. Gayle, criminalizing possession of a gun by anyone who is convicted of a crime “in any court.” The question is whether “any court” includes foreign courts.

Posner dismisses the more formalist analysis of Second Circuit Judge Robert Katzman, who decided against including foreign courts. Instead he suggests that true analysis requires judges to “complete the statute” and deal “sensibly” with an issue. Posner finds, along with Katzman, that foreign courts should not be included, but says this conclusion should be reached despite the statute’s literal meaning, because otherwise people in the United States would see their rights violated based on convictions by a North Korean court or a court in some other jurisdiction lacking proper standards of due process.

To my mind, this is the right result—but it can and should be derived formally. There is a well-known legal rule that for centuries has formed part of the background against which statutes are interpreted: the absurdity doctrine. In Sturges v. Crowninshield (1819), Chief Justice Marshall gives the canonical statement of the rule: “But if in any case the plain meaning of a provision, not contradicted by any other provision in the same instrument is to be disregarded, because we believe the framers of that instrument could not intend what they say, it must be one in which the absurdity and injustice of applying the provision to the case would be so monstrous that all mankind would without hesitation unite in rejecting the application.”

But note that although this rule, as stated by Marshall, would militate against a wooden reading of the statute at issue in Gayle, it is not an invitation to judges to reach sensible results. It carefully provides authority to depart from plain meaning, but also provides clear limits to such departures.

The more basic point is that no statute is created ex nihilo but against a rich background of legal traditions and applications. It is those traditions and applications that students can learn at school. In doing so, they not only benefit themselves by being better lawyers as measured by the conventions of the profession but make law more certain and determinate by using the full resources of an Anglo-American legal tradition that stretches back centuries. Oddly, Posner is a bit of a romantic in believing that judges, even the many who are not nearly as talented as he, can do better at resolving legal cases and controversies by their own individual calculus than by resort to the “artificial reason of the law,” which reflects the judgment of many through the ages.

It is odd, in the first place, to assume as Posner does that legal formalism is the dominant culture of our law schools and an obstacle to the more candidly pragmatic legal world he desires. Far more law professors in my experience are legal realists than formalists. Their inclination toward realism reflects a will to power: they are in a better position to shape the law through their students if the law is not already shaped by doctrine.

The rise of professors with a Ph.D. in another discipline has accelerated the move away from formalism, because such professors see law as structured around something other than legal doctrine, be it economics, psychology, or politics. My concern about formalism and law schools is the reverse of Judge Posner’s. Given the centrality of doctrinal argument to being a good lawyer, the relentless interdisciplinary focus may make law school more interesting for professors but less professionally rewarding for students. Thus, Posner’s core idea for improving legal education will only reinforce its primary problem: It serves far better those it pays than those who pay for it.

Posner does accurately diagnose some structural and management problem in the judiciary. He is right that life tenure for judges does seem increasingly problematic given the lengthening of life expectancies. It is conceivable that, with further improvement in medical technology, judges could even occupy the bench for 50 years or more. Even a formalist recognizes that judges must apply the law to facts. And as judges age, they are less likely to comprehend new developments, particularly in technology, that stir litigation. Posner is correct on some minor structural issues as well. There should not be a uniform federal salary for federal judges. The cost of living in Boise is radically lower than it is in New York City.

This book spends a lot of time on management issues in the judiciary. The author argues that judges do not manage their staffs well, and permit law clerks too much control over the content of legal opinions. He believes too many judges are slackers and let cases languish. Others stay on the bench beyond their time of mental acuity. There is a season for resigning as well as for judging.

But it is unclear what such sage observations as these are doing in a book about the divergence between the academy and the judiciary. After all, professors cannot do much to resolve these problems. Law professors could write about life tenure. (Two of my colleagues, Steve Calabresi and Jim Lindgren, have published a powerful article arguing in favor of judicial term limits.) The ability to reform this lies not in the academy, but in the political process. Constitutional amendments like ones to change life tenure are often the hard work of many decades.

And academics are not going to have much, if any, influence on many of the other problems Posner describes. Judicial slackness, which includes sloughing off opinion-writing, is a consequence of life tenure and lock-step compensation. The very structures that protect the independence of judges create a culture of relative lassitude.

Then, too, just as the structure of the judiciary makes academic intervention futile, so the structure of academia makes it very unlikely. Academics have few incentives to focus on the problems of judges. These parochial areas of the legal profession are not the areas that give academics the opportunity to gain fame by displaying their intellect. Posner may deplore this fact, but as the pragmatist par excellence, he should show greater recognition of the constraints of the academic world. Even someone as brilliant as Professor Richard Posner would have had a hard time becoming eminent by following Judge Richard Posner’s advice.

The strongest part of Divergent Paths is its call for law schools to provide better tools to their students for factual analysis. Many areas of law, particularly the common law and business law, depend on quantitative analysis, and yet students often graduate as ignorant of statistics and basic accounting as when they matriculated. Given that being a lawyer requires the application of law to facts, there is no contradiction in being a formalist in legal interpretation and an empiricist in factual development. Moreover, state courts continue to have common law jurisdiction, which does permit more free-form reasoning. One advantage of the rise of J.D./Ph.D. law professors is that they are well placed to give courses in law and statistics and other quantitative methods that are increasingly important in this era of big data.

Indeed, these kind of methods can help make formal statutory interpretation more accurate. Posner is right to note the limitations of dictionaries as aids to statutory interpretation. They provide the possible meanings of a term, but do not indicate what meaning is likely in context. Corpus linguistics promises to provide a large database of usages for the time at which the law was enacted. With statistical methods, interpreters could then more accurately find the most appropriate meaning for the context. Lawyers can contribute to this enterprise, but only if they have at least a rudimentary analysis of statistical methods. The meaning of law is a social fact, and formalists should welcome better empirical methods to approximate meaning.

Posner’s recommendation that law schools educate judges in these and other methods bumps up against financial constraints, however. Judicial education programs are not cheap, and judges themselves will not pay for them. Law schools could try to raise funds for such an enterprise, but that would likely mean fewer funds for activities that directly benefit students. And fundraising for judicial education is controversial, because critics argue that judicial education is judicial indoctrination—an attempt to influence cases in the direction of the funders’ interests.

When I was a fledgling academic, I had the good fortune to review Posner’s 1986 book, Aging and Old Age. It was a pellucid, short book written in sprightly manner about the effects of an experience we all hope to endure. My general impression of Posner’s work then was of genius distilled. But I regret to report that this book lacks the verve and directness of such earlier works. It is long and diffuse, containing four appendices.

Judge Posner may have had an unfortunate influence on Professor Posner. Judges fear no contradiction, enjoy a captive audience, and tend to speak ex cathedra. Scholars, in contrast, need to write with a critic at their elbow, because they have to persuade their audience to stay with them.

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