Overdue Process

David Post from the July 1995 issue

(Page 2 of 2)

But what then of economics? If judging is about values, and if economics can't help supply those values, what's the point? The point is that however little sway economics may hold at the level of competing moral values, it should loom large in the world of fact and counter-fact, as a means to examine the practical consequences of alternative formulations of legal rules so that, at least, judges can make an informed choice among them (based ultimately, again, on the contours of their own moral universe).

Posner calls his approach "legal pragmatism," one that is more interested in the actual empirical consequences of legal rules than in their fit within existing legal dogma and doctrine. What will the world--the real world of human behavior and human interaction, not the world of legal doctrine--actually look like if, say, homosexual marriages are permitted (chapter 26, "Economics and the Social Construction of Homosexuality")? If employees are granted enforceable "rights" to continued employment (chapter 13, "Hegel and Employment at Will")? If blackmail were not a criminal offense (chapter 25, "The Legal Protection of the Face We Present to the World")?

Other disciplines--history, biology, sociology--may have much to say about these matters, and Overcoming Law is an extended plea for more (and higher-quality) interdisciplinary analyses of legal issues so as to get a better handle on that which counts--empirical consequences of alternative legal rules. If I am asked to decide a case about involuntary confinement of the mentally retarded, Posner is saying, teach me about the social conditions of confinement, about pharmacology and other treatment methods, about the relative costs of different treatment strategies--but don't harp on some formal exegesis of the Due Process Clause.

Will this approach "overcome" law? It's a somewhat curious choice of a title, since we normally look to our judges to apply, interpret, or analyze law--but not to "overcome" it. But I suspect that Posner is speaking of breaking the increasingly artificial and counterproductive headlock in which the law--at least, the kind of doctrinal analysis practiced by most academics and judges--has held this mode of inquiry. Law, in Posner's vision, becomes part of a more conversational mode of inquiry, an extended debate in which we are all--not just the lawyers--invited to participate.

It is, to this reader, a strikingly appealing vision of the nature of legal process, but it is one unlikely to be warmly embraced by the opinion makers inside the legal community. Someone who describes the Harvard Law Review as "on its way to becoming a laughing stock"; who suggests that the typical law professor is "immersed in increasingly mediocre texts [to which] he applies analytical tools of no great power--unless they are tools borrowed from another field"; and who compares the organized bar to a medieval craft guild, mocking those who whine about the practice of law no longer being any "fun" by pointing out that competitive markets--which the law is slowly becoming, to the horror of many--are "no fun at all for most sellers"--such a man is not on his way to being beloved by his peers. But his ideas are surely worth a look, in spite of--or probably because of--that.

Comments

nfl jerseys|11.17.10 @ 12:51AM|#

nxhtg

log in or register to reply

سهمي|12.11.10 @ 4:47PM|#

sagasg

log in or register to reply