What books on law should be.

Author:Posner, Richard A.

I have thought it might be useful to our profession, and appropriate to a foreword to a collection of reviews of newly published books on law, to set forth some ideas on how books can best serve members of the different branches of the legal profession--specifically judges, practicing lawyers, law students, and academic lawyers--plus persons outside the legal profession who are interested in law. I am not interested in which already published books should be retained and which discarded, but in what type of book about law should be written from this day forward. I will mention a few existing books but only as examples of the sort of law-related book for which there is a current need.

I mentioned four legal audiences. I'll begin with judges because, as I'll explain, the best books for practicing lawyers, law students, and academic lawyers are books that judges should also read.

It might seem that a judge, time permitting, would or should be interested in reading any worthwhile book about law. But this is not correct. Judges are either generalists or specialists. In the American judicial system, they are mainly, though not exclusively, generalists. Specialists, of course, can benefit from books in their specialized field. But no generalist judge can read books about every field of law within his jurisdiction or if he reads them remember them. I will confine this discussion to books for generalist judges.

I'm a generalist judge, and (here speaking, I think, for most generalist judges) I can't say I've read a great many books for their bearing on my judicial work. Certainly not in their entirety. The books most likely to be of use to a judge are, for the most part, books that, like a dictionary or an encyclopedia, are not intended to be read through but rather to be dipped into, such as legal treatises and the American Law Institute's Restatements. These are valuable works, increasingly searchable online, and give judges and lawyers quick access to essential legal information, authorities, and materials. I'm sure that all judges would agree with me that they should continue to be produced and updated. Their format, however, will change. I am uncertain whether treatises should continue to be printed or just published online. It is much easier to search a book online; one is not tied to an index or table of contents but can search for a word or a name or phrase of one's choice. But I will ignore the format issue and call a book a book whether it is printed or electronic.

There are books about judges or judging that new judges should read and that experienced judges should, if time permits, reread at some point in their careers. There are several distinct genres of such book. One is judicial biography. It is a genre of mixed quality, but there are some excellent judicial biographies, such as Andrew Kaufman's biography of Benjamin Cardozo, (1) Dennis Hutchinson's biography of Byron White, (2) and David Dorsen's recent biography of Henry Friendly. (3) Years ago I wrote a short (156 pages) critical study of Cardozo and suggested in it that a critical study of a judge might be a quite adequate, and efficient, substitute for a biography, (4) especially of so shy, secretive, and introverted a judge as Cardozo, who led such a dull life--but most judges, like most lawyers, live rather dull lives. (Holmes, Douglas, and White are notable exceptions, (5) and there are some others.) The reason I think such a substitute adequate is not that the details of a judge's life can't shed any light on his work or outlook, etc., as a judge, but that a judge reading a biography can't benefit in his own work from the details of someone else's life. But I'm not aware that anyone has been inspired by my suggestion for book-length critical studies of judges.

There are valuable collections of judicial opinions, and other published writings, including books, articles, and correspondence, by the great judges, such as Holmes, Hand, and Friendly. (6) I think one can learn a lot about writing a judicial opinion from reading judicial opinions by the handful of judges who have themselves been distinguished as opinion writers. Not that one would want to imitate the writing style of a Holmes or a Hand or a Cardozo; their styles are highly individual and, to a degree, archaic. One learns to write well both by practicing writing and by reading great writing, rather than by imitation. (Educated Englishmen learned to write beautifully mainly from immersion in Latin and Greek.)

The handful of classic books about the judicial process, notably by Holmes and Cardozo, are well worth reading, as are the classic books on the judicial process by Hart and Wechsler, H.L.A. Hart, and distinguished academics such as Karl Llewellyn and other legal realists. (7) But the entire literature on the judicial process is too vast for any judge to read and remember, including as it does books on legal formalism and legal realism; on other topics in jurisprudence and the legal process; on "law and ... (law and economics, law and feminism, critical race theory, etc.); on interpreting...

To continue reading