Reflections on Judging.

• Author: Brennan-Marquez, Kiel
• Position: Book review

REFLECTIONS ON JUDGING. Richard A. Posner. (1) Cambridge, Mass.: Harvard University Press. 2013. Pp. 366. $29.95 (cloth).

I.

Richard Posner is disappointed in his colleagues.

As the technical complexity of the federal docket continues to ratchet upward, judicial competence is losing pace. When it comes to factually intricate cases, forget properly resolving them--in Posner's view, judges often have difficulty parsing them. This is not terribly surprising. Causes of action today rest on more esoteric grounds than ever before: rapidly evolving technologies, "exotic" financial instruments, counterintuitive economic principles. Even federal judges, who tend toward the highly intelligent side, are liable to get confused. The deeper problem, and the one that truly motivates Posner's critique in Reflections on Judging, is that judges are exerting little effort to catch up. More than that, actually: according to Posner, the issue today is not only that social and technological change outpaces judicial comprehension. It is that many judges have responded to such change by burrowing headfirst into the formalist sand, effectively entrenching their own ignorance. The results, in Posner's view, have been disastrous: faux sophistication with a high-handed stride--sophistry.

Posner's claim is simple and convincing. He argues that judges, bewildered by the involution of many cases today, have succumbed to a collective reaction-formation. Rather than grappling with the reality of factual and technological evolution--what Posner calls the growing "external complexity" of law--judges have fixated on, and unwittingly multiplied, the law's "internal complexity" (pp. 1-17). The latter has two guises, the first of which is doctrinal. Whether because judges have failed to define abstract legal terms, or just the opposite--because judges have tried too hard to define abstract terms, when plain language does the job more crisply--Posner suggests that contemporary doctrine often operates as an encumbrance rather than a guiding light. One example is "proximate cause," a tortured idea that, for Posner, emblematizes the judicial "attempt to reduce a heterogeneous body of phenomena to a single term" (p. 65).

The second guise of internal complexity might be termed "stylistic." Posner vociferously opposes legalese, and he despises the "hypertrophy" of citations (p. 96). A few years ago, Posner published an acerbic "review" of the Bluebook in the Yale Law Journal, (3) much of which has been woven into Reflections on Judging (Chapter 3). But the problem, in Posner's eyes, reaches far beyond citation form. He sees the sprawling catastrophe of the Bluebook--591 pages!--as symptomatic of deeper illness. Along with other "barnacles of legal formalism," it reflects an ethic of insularity that has seeped into, and overtaken, judicial practice of late (p. 104). The barnacles are numerous. Beyond "obsession with citation form," they include "fear of math and science, insensitivity to language and culture, [the] mangling of history, superfluous footnotes, verbosity, excessive quotation, reader-unfriendly prose, exaggeration," and (my favorite, I must say) "bluster" (p. 104).

The alarm of these developments may well be self-evident. For good measure, however, Posner elaborates a few reasons why we should be disturbed. The first is that the judicial focus on internal complexity necessarily diverts attention from its external counterpart. Cognitive resources are limited; choices of emphasis incur opportunity costs. And in Posner's estimation, it is often more important to work carefully through external complexity--the actual facts--than it is to spend time hand-wringing over doctrinal and stylistic niceties. Another reason to be disturbed: in Posner's view, doctrinal and stylistic niceties are not only distracting. They are fatuous, an active hindrance to interpretation. The overgrowth of doctrine, the artlessness of legal jargon, the winding paragraphs that consist of nothing more than string-citations; these and other sources of "internal complexity" have combined to make judging, in reality a vanilla process, seem almost mythical in substance and scope. Obscurity has flourished in a realm where transparency ought to reign.

Posner's solution is as straightforward as the problem he diagnoses: "realism." A realist judge, on Posner's account, is one who pays keen attention to facts, no matter how confusing they are, and who asks, at every turn, what actually happened, what is actually at stake. "The realist," in short, "wants to impose a simple style of legal analysis on a sure understanding of the scientific or commercial complexities, factual rather than legal, out of which cases arise" (p. 4).

By "simple," Posner means not just stylistically simple, but also analytically simple. For law, he writes, is not the "profound" enterprise that we often imagine it to be; in fact, it is "one of the simplest professional fields" (p. 354). The reason young judges are rare is not that nascent legal minds are fallow compared to older legal minds. The opposite may well be true (p. 255). The reason young judges are rare is that conceptual dexterity is not equivalent to sound judgment. While youth often brims with the former, the latter, by nature, can only be honed with experience. In this respect, Posner styles his "realism" explicitly in the vintage of Holmes' quip that "law is not logic but experience" (p. 6). (4) This inspires Posner to criticize formalism and grand academic theory with equivalent fervor. He spends an entire chapter putting Justice Scalia--the embodiment of judicial formalism--and Akhil Amar--the embodiment of intellectual "dreaming"--equally to the lash (Chapter 7).

The upshot is that judges today could stand to ease up on professional technique--a major culprit of internal complexity--and focus instead on cultivating practical wisdom. A key attribute of realist judging, in this vein, is the ability to pare down. For Posner, a successful realist opinion is one that begins with complicated facts, reconstructs them in crisp, easy-to-understand language, and efficiently conveys their legal significance. Posner illustrates this point by an amusing show-and-tell. To punctuate Chapter Eight--the "opinion writing" chapter--he takes the liberty of rewriting United States v. Morris, a D.C. Circuit case about the sufficiency of evidence to sustain a conviction for cocaine possession. (5) The published opinion spans 3,237 words; Posner's revision, far clearer than the original, is slightly north of 600 (pp. 276-86).

In fact, the connection between realism and clear writing runs deeper than first appearances might imply. To readers who "may think it puzzling" that Posner emphasizes writing style alongside "the 'scientistic' approach that [he seems] to be urging on judges," he admonishes, in a lovely little passage:

There is no inconsistency. For I'm not trying to turn judges into scientists communicating in symbols and jargon. I'm urging greater judicial recognition of the ever-increasing complexity of the factual underpinnings of modern federal litigation. That makes good judicial writing more rather than less important.... Law must come to terms with modernity but will remain a humanity, and should (p. 355). And in hands deft as Posner's, I daresay...