Overcoming Law.

AuthorRosen, Jeffrey

At a conference on judicial biography held at the New York University Law School last May, Judge Richard Posner unsettled and discomfited the assembled scholars by questioning the value of the entire genre. Judicial biography, Posner argued, is. an enterprise "beset by profound epistemological problems" and an "uneasy relation with truth."(1) Ideological biographies, which measure the subject against an ideal judicial philosophy, presuppose a level of consensus that may not exist. Essentialist biographies, which assume a hidden layer of personality lying beneath the faces judges present to the world, rely on the fiction that preferences, values, and traits of character can be reduced to a coherently organized essence. What is interesting about most judges is their opinions and their votes, not their mostly mundane lives, and so Posner concluded that scholars might do well to abandon the project of full-scale judicial biographies entirely, devoting themselves instead to less time-consuming studies of a judge's opinions, philosophy, style, and influence. But "[i]t is a curious property of judicial biography," Posner conceded, "that the more political the judge, the more illuminating the biography is likely to be."(2)

After reading Overcoming Law,(3) Posner's dazzling collection of recent essays, it is hard not to conclude that an essentialist biography of Richard Posner would be, by Posner's own standards, very illuminating. For the judicial pragmatism that Posner advocates in his book is based on a rejection of theory and an exaltation of judicial personality. "The adjectives that I have used to characterize the pragmatic outlook-practical, instrumental, forward-looking, activist, empirical, skeptical, antidogmatic, experimental-are not the ones that leap to mind when one considers the work of, say, Ronald Dworkin."(4) They are, however, adjectives that leap to mind when one considers the temperament of Richard Posner, and to some extent Posner is offering his own personality as a substitute for methodology. He goes on to argue that judicial decision precedes articulate theory," that "instinct can be a surer guide to action than analysis," and that judges should "accept[] the role of personal values in adjudication [asking] only that they be yoked to empirical data."(5)

When the time comes, Posner's biographer should not have to delve very deeply into Posner's charming and witty personality to identify the values at the core of his own judicial philosophy. Posner describes himself as a classical liberal in the tradition of Mill;(6) throughout the book, he insists on the centrality of facts over values, aspiring "to nudge the judicial game a little closer to the science game."(7) Posner imagines the judge in general, and himself in particular, as a heroic social scientist, ranging confidently across disciplines, selecting with wise and shrewd judgment the steps required to sustain the welfare of democratic society.(8)

And yet Posner's romantic focus on the individual act of judging is so, well, romantic that it is hard to reconcile with the broader claims of his pragmatic methodology. As a pioneering scholar of law and economics, Posner prefers to think in terms of legal systems, treating individual judges and individual cases as little more than tiny points of data to be collected and studied as a whole. In his masterful chapter on the economics of judging, for example, his utility function for predicting what judges would maximize if they did more than the minimum amount of work (reputation, prestige, avoiding reversal)(9) is especially entertaining. When formulating a constitutional methodology, by contrast, Posner becomes a giddy acolyte of Holmes, and he insists that heroic judicial personalities must be given free rein. But not every judge is always Holmes (not even Holmes was always Holmes),(10) and one of the goals of a judicial pragmatist should be, presumably, to organize a legal system that will expose legal doctrine to critical analysis over time. By exalting the bounded rationality of individual judges, Posner undermines his broader effort to identify doctrinal principles that can usefully guide and constrain the development of the law as a whole.

Rather than try to provide a comprehensive account of the impressive range of Posner's essays, I would like to focus on Posner's argument that personal values supported by empirical data are a legitimate substitute for constitutional theory in its various incarnations. This is hardly the most novel argument in the book. Nevertheless, Posner's argument that empiricism can resolve many, although not all, difficult legal problems is a central theme of the collection, and it is exemplified by the book's combative title. Is Posner convincing when he claims to have overcome law by retreating into the cool objectivity of facts? Despite the sparkle of the individual essays, I do not think he is convincing, and his proposed methodology of constitutional pragmatism, in addition to being hard to defend as a matter of democratic legitimacy, also seems unpragmatic on its own terms.

Part I evaluates the touchstone of Posner's pragmatism, the elusive "reasonableness" standard, and argues that it is neither very reasonable nor very pragmatic. Part H argues that Posner's confident distinction between facts and values is hard to reconcile with questions of democratic legitimacy, as well as being philosophically simplistic. Part III suggests that Posner's pragmatism is impractical on its own terms, both because individual judges are not very good fact-finders and because the judiciary as an institution is better equipped to look backward, at text and doctrine and history, rather than forward, speculating about the empirical consequences of its decisions. Part IV attempts to defend constitutional theory against some of Posner's criticisms, suggesting that public choice analysis, although it yields important insights, is ultimately an arid and incomplete framework for understanding moments of constitutional transformation.

  1. Reasonableness

    In its discussion of pragmatism in statutory and constitutional cases, Overcoming Law largely parallels Posner's more detailed discussions in The Problems of Jurisprudence.(11) The centerpiece of Posner's methodology in the earlier book was the amorphous standard of reasonableness:

    I can think of no better approach than for judges to conceive of their task, in every case, as that of striving to reach the most reasonable result in the circumstances - which include though are not limited to the facts of the case, legal doctrines, precedents, and such rule-of-law virtues as stare decisis .... substituting the humble, fact-bound, policy-soaked, instrumental concept of "reasonableness" for both legal and moral rightness.(12)

    Posner refused to say how, exactly, judges should mix these various virtues to reach the most "reasonable" result, although he acknowledged the relevance of prudential virtues, such as sensitivity to the limits of judicial knowledge and the desirability of stability in law.(13)

    In Overcoming Law, Posner again invokes the ideal of reasonableness to buttress his conclusion that judicial decisions should be made and evaluated purely in light of their consequences. He cites Cardozo's maxim that "`[t]he final cause of law is the welfare of society.'"(14) Cardozo does not mean, Posner emphasizes, that judges "`are free to substitute their own ideas of reason and justice for those of the men and women whom they serve Instead, he says, quoting Cardozo, "`the thing that counts is not what I believe to be right. It is what I may reasonably believe that some other man of normal intellect and conscience might reasonably look upon as right.'"(16)

    But Posner's definition of reasonableness turns out to be very different from Cardozo's definition. Cardozo was arguing for strenuous judicial restraint. He urged judges to suppress their own personalities and to project themselves sympathetically into the collective conscience of the people. After quoting Holmes's dissent in Lochner v. New York," Cardozo emphasized that in constitutional interpretation, "[t]he personal element, whatever its scope in other spheres, should have little, if any, sway in determining the limits of legislative power."(18) Statutes should be sustained, he emphasized "unless they are so plainly arbitrary and oppressive that right-minded men and women could not reasonably regard them otherwise."(19) Cardozo was also relatively confident that there are objectively right answers to legal questions:

    It is the customary morality of right-minded men and women which [the judge] is to enforce by his decree. A jurisprudence that is not constantly brought into relation to objective or external standards, incurs the risk of degenerating into what the Germans call "Die Gefuhlsjurisprudenz," a jurisprudence of mere sentiment or feeling. A judicial judgment, says Stammler, "should be a judgment of objective right, and no subjective and free opinion; a verdict and not a mere personal fiat."(20)

    Cardozo, of course, was writing about constitutional interpretation in the shadow of Lochner, at a very specific time and place. Faced with the choice between James Thayer(21) and Justice Peckham,(22) he inclined toward Thayer. But Cardozo's confident references to the "customary morality of right-minded men and women" are a peculiar model for Posner, whose world view is grounded in the idea of social dissensus. The most joyfully savage passages in Overcoming Law are directed at Herbert Wechsler's high-handed notion of neutral principles,(23) at the grandiose idea that right minded judges, through skills of craft, can resolve bitterly disputed social problems without engaging the "messy world of empirical reality."(24) The fact that Posner can invoke Cardozo on-behalf of a "reasonableness" standard that represents, in many ways, all that Posner rejects shows the endless...

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