Reflections on Judging

Richard A. Posner

• Publisher: Harvard University Press
• Year: 2013
• ISBN:
  9780674184657
• Topic: Law
• Subtopic: Jurisprudence
• Index: Law

In Reflections on Judging, Richard Posner distills the experience of his thirty-one years as a judge of the United States Court of Appeals for the Seventh Circuit. Surveying how the judiciary has changed since his 1981 appointment, he engages the issues at stake today, suggesting how lawyers should argue cases and judges decide them, how trials can be improved, and, most urgently, how to cope with the dizzying pace of technological advance that makes litigation ever more challenging to judges and lawyers.For Posner, legal formalism presents one of the main obstacles to tackling these problems. Formalist judges--most notably Justice Antonin Scalia--needlessly complicate the legal process by advocating "canons of constructions" (principles for interpreting statutes and the Constitution) that are confusing and self-contradictory. Posner calls instead for a renewed commitment to legal realism, whereby a good judge gathers facts, carefully considers context, and comes to a sensible conclusion that avoids inflicting collateral damage on other areas of the law. This, Posner believes, was the approach of the jurists he most admires and seeks to emulate: Oliver Wendell Holmes, Louis Brandeis, Benjamin Cardozo, Learned Hand, Robert Jackson, and Henry Friendly, and it is an approach that can best resolve our twenty-first-century legal disputes.

1

THE ROAD TO 219 SOUTH DEARBORN STREET

My chapter title is not as dramatic as The Road to Wigan Pier by George Orwell or To the Finland Station by Edmund Wilson; 219 South Dearborn Street in Chicago, the address of the federal courthouse that houses the United States Court of Appeals for the Seventh Circuit, simply turned out unexpectedly to be my career destination. The “road” I took offers some insight into the complexification of the federal judiciary, however, which is a major theme of the book.

Education and Early Career

I entered Yale College in 1959 at sixteen, having skipped my last year of high school.¹ I went to Yale for no better reason than that my father had read in the New York Times that Harvard and Yale were admitting kids after three years of high school (the University of Chicago had long been admitting them after only two years of high school,² but, ironically in light of where I’ve ended up, nothing west of the Hudson River existed for me at the time). I applied to Harvard and Yale, was rejected by Harvard and accepted by Yale, so I went to Yale. I would have preferred (mistakenly, as I’m about to note) to go to Harvard, and if I had remained in high school for the fourth year and reapplied then I would have been admitted; but I wanted to get on with my career. I am surprised at how little haste the modern young feel in establishing themselves in their chosen career, or indeed in deciding on a career.

I majored in English at Yale—literature having long been my favorite subject, which I attribute in part to my mother, a high school English teacher, who started reading Homer and Shakespeare to me when I was three years old (maybe earlier). The New Criticism—which, downplaying biographical and historical approaches to literature, treated the literary work as an autonomous aesthetic object, accessible to understanding and appreciation without the reader’s having to know much at all about the author or the author’s times—was in its heyday when I was in college, and Yale was its center. Cleanth Brooks, a famous New Critic, was my senior thesis advisor. (My thesis was a book-length study of W. B. Yeats’s late poetry.) I was and remain enthusiastic about the New Critical approach. I mention this because it has influenced my judicial approach; it has made me a better close reader than I otherwise would have been, able to interpret complicated texts. A related point is that the New Critical approach liberated me from excessive dependence on history as a guide to understanding a text.

I don’t think the New Criticism had much purchase at Harvard, which along with the fact that Yale was more focused on undergraduate education makes me grateful for having been turned down by Harvard.

I entered Harvard Law School directly after Yale. I had no burning interest in law. But my father was a lawyer (and businessman) and law was, as it still is to a considerable extent, a default career choice. And while I loved literature, I was not attracted to the idea of earning a living from writing about it and was not attracted to teaching. I had applied to Yale Law School as well and been accepted, but decided that Harvard would be the greater challenge; it didn’t baby the students, as Yale Law School did and does. I think I made the right choice.

I loved my first year at the Harvard Law School, in all its brutishness. Harvard stacked its best teachers in the first year and they were superb, though cold, demanding, and at times nasty. At the end of the year I had the strange feeling that I was markedly more intelligent than I had been a year earlier. I had also developed a respect for law and lawyers (at least lawyers personified by the members of the Harvard Law School faculty), and specifically for the common law, which dominated the first-year curriculum. The second- and third-year curricula I found much less interesting. (Several of the courses were taught quite badly—that’s when I discovered that the law school stacked its best teachers in the first-year courses.) I cut many classes the second year (so my grades fell, and as a consequence I was a more conscientious student in my third year), and spent most of my time during my last two years working as a member of the Harvard Law Review—a truly meritocratic institution, by the way. Membership was based entirely on grades (that is no longer the case), and although the president of the law review was elected by the members, there was no politicking (also no longer the case). There was a slight tendency to elect the best student provided he had taken his duties as a member of the review very seriously.

I assumed that I would practice law in New York (I had been born in New York, and grew up there and in Scarsdale), though I had not worked at a law firm in the summer after either my first or second year—summer law firm jobs were unusual in those days, and I did not apply for one. I had no interest in law teaching and no thought of becoming a judge, though I recall dimly having thought that being a federal district judge might be fun. I had no idea how one became a judge if one wanted to be one.

Paul Freund, a well-known Harvard Law School professor to whom Justice Brennan (himself a Harvard Law School alumnus) had delegated the selection of his two law clerks each year (such delegations were common in those days), asked me to clerk for Brennan, and I agreed. I have to say at the risk of blasphemy that I found the Supreme Court an unimpressive institution. I was stunned to discover that Supreme Court Justices didn’t write all their own judicial opinions (Douglas did—and his were the weakest, though not because he was dumb—rather because he was bored); the Harvard law professors, although extremely critical of the liberal Justices, had not let on that law clerks played such a large role. In preparation for the Brennan clerkship I read a number of his opinions and was impressed by them; only later did I learn that the best of them had been written by a former clerk of his, a brilliant Harvard Law School graduate named Dennis Lyons.

Brennan had been a very successful lawyer and later a distinguished member of the Supreme Court of New Jersey. I’m sure he could have written good judicial opinions, and indeed I’m told that there were years during his long service on the U.S. Supreme Court when he had a law clerk whose opinion drafts didn’t satisfy him, and so he wrote those opinions himself and they were good. I think most federal appellate judges could write at least okay opinions. But it’s also true that law clerks, being selected by judges rather than, as the judges are, by politicians, are often abler legal analysts and writers than their judge. Most judges don’t much like to write and prefer therefore to review and edit law clerks’ opinion drafts. The editing is sometimes very light.

The Supreme Court’s work tempo my year (the 1962 term) was slow; I worked less hard that year than any year since. I read a great deal of literature in the evenings and on weekends, particularly classic English and American novels, from Dickens to Faulkner, because I had concentrated on poetry and drama at Yale, the preferred subjects of the New Critics. I discovered that I didn’t (yet) really have much interest in law, and I even toyed with the idea (though I quickly abandoned it) of quitting law and getting a graduate degree in English. But quite by chance, shortly before the clerkship ended and I was to start as an associate at a large New York law firm (Paul Weiss), I was offered a job as an assistant to an outstandingly able Federal Trade Commissioner named Philip Elman (a former law clerk of Frankfurter’s and a longtime member of the Solicitor General’s staff). I worked for him for two years and learned a great deal; he was a terrific lawyer.

I had developed an interest in antitrust law working on a major bank merger case as a Brennan clerk,³ and my interest deepened at the FTC, which has an antitrust as well as a consumer-protection jurisdiction—and I found consumer protection interesting too. Under Elman’s guidance and with considerable staff assistance I wrote the commission’s statement promulgating and justifying a rule requiring health warnings in cigarette labeling and advertising.⁴ Although quickly preempted by Congress, the rule was the beginning of the eventually very successful regulatory efforts to curb smoking.

In my time at the commission I became friendly with its chief economist, Willard Mueller, and developed a nascent interest in economics. Oddly, the seed of this interest had been planted in my first month or so on the Harvard Law Review, when I was quite by chance assigned to cite check a chunk of an antitrust article by Derek Bok (then a law professor at Harvard, later dean of the law school, and after that president of Harvard)—the chunk in which he discussed the economic theory of oligopoly. I had never heard of the theory of oligopoly, but I found it intriguing and drew on it in the bank-merger opinion that I wrote for Justice Brennan.

From Elman I went to the Solicitor General’s office,⁵ where I stayed for a little more than two years, writing many briefs and arguing six cases in the Supreme Court. My particular focus was antitrust and regulation, and I became really interested in these fields. But I didn’t think that the government’s briefs or oral arguments swayed decision—whatever drove Supreme Court decisions, it wasn’t lawyers’ advocacy. So as my second year in the Solicitor General’s office drew toward an end, and I began to receive invitations to interview for teaching jobs, I decided to try teaching. (Practice held no appeal for me. I don’t remember why, but my guess is that it was a combination of not wanting to continue working for others and not wanting to have to defend positions not my own, but a boss’s or a client’s). I accepted an offer from Stanford but before starting there spent my last year in the government working (again by invitation, not application) on the staff of a presidential task force on telecommunications policy. This was a fascinating assignment and cemented my interest in antitrust and regulation—and also in the use of economic analysis, in which, however, I was very much a tyro, to inform the law in those fields. The research director of the task force, a very able RAND economist named Leland Johnson, greatly stimulated my interest in economics.

It is worth mentioning, in light of my discussion in Chapter 10 of the relation between the judiciary and the academy, the conversation that persuaded me to take a whack at law teaching. The dean of the Stanford Law School was a brilliant and charismatic corporate lawyer named Bayless Manning. In the spring of 1967, my second year in the Solicitor General’s office, Manning (whom I’d never met or indeed heard of) called or wrote me and said he’d be in Washington and would I have lunch with him. I said sure, and we had lunch. It was very shortly after the Arab-Israeli Six-Day War, and that was virtually all we talked about. I was fascinated by the breadth of his interests and knowledge and began to think that maybe law professors were more interesting people than other lawyers. (I didn’t realize that Manning had an especially deep interest in foreign affairs; he later became president of the Council on Foreign Relations.) But when he tried to interest me in law teaching, I said that I didn’t see myself writing academic articles. He said that didn’t matter—law professors could contribute to the law in other ways. Anyone who said that to a law school faculty recruiter today would be instantly dismissed from consideration. Academic law, which in the 1960s was more closely identified with the legal profession than with the academic culture of the universities, is today quite as much “academified” as the core university departments, resulting in a division between law professors and legal practitioners—including judges—that has deprived the judiciary of much-needed assistance in meeting the challenge of rising complexity.

After a year at Stanford, during which I had the good fortune to get to know Aaron Director and George Stigler, two outstanding University of Chicago economists (Director had retired to the Bay area and had an office at the Stanford Law School, and Stigler happened to be a visiting professor at Stanford during part of my time there), I accepted an offer from the University of Chicago Law School because of its unique concentration of economists accessible to law professors and interested in law. And from then on I taught, and published academic work, in the emerging field of economic analysis of law. I also did a good deal of consulting, particularly in antitrust law but also in public utility and common carrier regulation, for example in the airline and railroad industries. I also did consulting on environmental regulation and on the Ford Administration’s ill-fated price controls.

The Federal Judicial Appointment Process in 1981

I never thought about becoming a judge. But one day in June 1981, when I was in my office at the consulting firm (Lexecon Inc.) that I had started in 1977 with William Landes and Andrew Rosenfield, a friend and former Stanford colleague of mine named William Baxter, who had had been appointed by President Reagan to head the Justice Department’s antitrust division, called me out of the blue and asked whether I’d be interested in being appointed to the Seventh Circuit. I said no, and he said that’s what he’d thought I would say. But as he was about to hang up I said, Well let me think about it for twenty-four hours, and he said fine. So I thought about it and talked to my wife (who was willing to accept a substantial reduction in our income—I had both a generous academic salary and a larger income from consulting), and to my father and Phil Elman, both of whom urged me to accept the judgeship; and within the twenty-four-hour deadline I told Baxter I’d like to think about the prospect some more. About a week later I said I’d do it. I had decided that the reduction in my income would be tolerable, since I would be able to teach part-time while being a judge and so have a teaching income, albeit a much lower one than when I had been full-time, to supplement my judicial income. And I was bored with consulting, in part because much of my time was taken up not with analysis but with pitching our services to clients, since I was the senior member of the firm.

I also thought a federal appellate judgeship would be an interesting and challenging job because of the variety and importance of many federal cases, that I would have an opportunity both to apply economic analysis in a real-world setting and to employ rhetorical methods that would be out of place in academic writing, and that it would be fun to test myself against the great judges of the past. And all this has turned out to be true. But I should mention a final, quite petty consideration that played a role in my decision to accept the appointment. The day before my first visit to the Justice Department to discuss the possibility of my accepting the appointment, I happened to testify before an administrative law judge of the (now defunct) Interstate Commerce Commission. I was subjected to very effective cross-examination by a young lawyer from Covington & Burling—William Livingston—and my client, the general counsel of a western railroad, was very annoyed with me for letting myself be yanked around by Livingston. My reaction was, Who needs this? I want to be on the other side of the bench. I want to be the torturer rather than the victim.

I wanted to keep doing academic work, and I guessed (correctly as it turned out) that with no more consulting, only part-time teaching, and none of the administrative responsibilities of a regular member of a law faculty, I would have enough time left over from judging to do about as much academic writing as I had been doing as a full-time academic. I also felt a sense of public duty pushing me to accept the judicial appointment. I was very conservative in the 1970s (after having been a liberal until the late 1960s), in part as a reaction to the disorder of the 1960s and in part under the influence of Chicago-style free-market economics. I had voted enthusiastically for Reagan and I felt that if his government wanted me as an official I shouldn’t refuse. I would have refused had it meant a real financial sacrifice or the job had been uninteresting, but reluctance to refuse a summons to public service had some weight in my decision.

I have continued to do academic writing, mainly though not only academic writing that applies economic analysis (and sometimes related fields of social science) to law, throughout my judicial career. I have applied such analysis to various substantive and procedural areas of law,⁶ but also to judicial behavior itself.⁷ And I have used economic analysis in a number of my judicial opinions. Economics is basically about how people respond to incen...

Table of contents

• Cover
• Title Page
• Copyright
• Dedication
• Contents
• Introduction: A Judge on the Challenges to Judges
• 1. The Road to 219 South Dearborn Street
• 2. The Federal Judiciary Evolves
• 3. The Challenge of Complexity
• 4. Formalism and Realism in Appellate Decision Making
• 5. The Inadequate Appellate Record
• 6. Coping Strategies for Appellate Judges I: Judicial Self-Restraint
• 7. Coping Strategies for Appellate Judges II: Interpretation
• 8. Make It Simple, Make It New: Opinion Writing and Appellate Advocacy
• 9. Forays into the District Court
• 10. What Can Be Done, Modestly?
• Conclusion: Realism, the Path Forward
• Acknowledgments
• Index