Overdue Process


Overcoming Law, by Richard A. Posner, Cambridge: Harvard University Press, 597 pages, $39.95

What are we to make of Richard Posner? His intellectual output is, by any measure, extraordinary. Appointed to the federal Court of Appeals in 1981 (where he continues to serve, now as chief judge of the Seventh Circuit in Chicago), Posner has authored more than 1,000 majority opinions—an annual rate approximately three times greater than the national average for appellate judges. Despite this output, no decline in quality relative to the average is in evidence; Posner is generally recognized as one of the more influential appeals court judges in the nation, and his opinions are cited by courts in other federal circuits more than four times the average.

His scholarly output is similarly prodigious. He has authored dozens of articles, along with 19 books prior to publication of the volume under review, and though he is best known as one of the founders of the "law and economics" movement, he has tackled a fairly dazzling array of subjects, from a literary analysis of the depiction of legal proceedings in such works as Kafka's The Trial and Melville's Billy Budd, to jurisprudential philosophy, to the way that issues of sexual conduct should best be handled by legislators and the judiciary.

Posner is always on the lips of the Great Mentioner (to use Russell Baker's phrase) whenever there is a Supreme Court vacancy, but he is always stricken from the list because of his ostensibly too-rightward-leaning, and altogether too "controversial," views ("Posner? Isn't he the guy who wants to buy and sell babies?"). His standing within the legal profession is oddly tenuous; though many agree with Jeffrey Rosen of The New Republic that "in a perfectly meritocratic world, a delegation of senators from both parties would fly to Chicago with a signed Supreme Court commission and lay it respectfully at Posner's feet," the American Bar Association grudgingly gave him only a weak "qualified" recommendation when he was first nominated to the bench. And a recent report from the Chicago Council of Lawyers complains that he demonstrates a "contempt for attorneys and…litigants" and suggests that a lack of practical experience leads him into such unprofessional conduct.

So what is this guy up to, anyway? Overcoming Law has some tantalizing clues. The bad news first. Posner's latest is largely a compendium of previously published work; there is nothing wrong with that, of course, except that, as with most such compilations, it lacks a certain concentration of focus. Reflecting the breadth of the author's interest, the book ranges widely through the law and beyond. There is a particularly interesting chapter comparing the "original intent" school of constitutional interpretation to the "original instrument" movement in classical music, as well as digressions into such areas as the behavior of Nazi judges, the portrayal of the legal system in Bonfire of the Vanities, application of Hegelian philosophy to contract law, and the social and political institutions of medieval Iceland. But it is sometimes difficult to identify the themes from which these are in fact digressing, to find amid this smorgasbord some unifying idea.

But there is such a theme—and it is an important one. It is not, as one might have expected, the virtues of the economic approach to law. To be sure, the book has a healthy dose of economic reasoning, including an attempt to describe judges' adherence to precedent as a function of the trade-offs between the "consumption value" each judge obtains by exercising discretionary voting power in individual cases, the value individual judges place on leisure time, and the effect of particular modes of judicial behavior on a judge's overall reputation.

But I believe that Posner is clearer here than in any of his previous work that there is—that there must be—more to the practice of judging than economics, or any similarly formal deductive system, can provide:

"Not all questions that come up in law, however, can be effortlessly recast as economic questions. Cases involving the regulation of sexuality and reproduction furnish endless illustrations. The economist has great difficulty getting a clear 'fix' on such questions. The costs of forcing a woman to bear an unwanted child are readily analyzed within an economic framework, but what of the costs to the fetus of being aborted? Whether those costs…shall be counted at all depends on whether fetuses are deemed part of the community whose welfare is to be maximized. That question…cannot be answered within economics….[W]hether abortion is wealth maximizing depends on whether the right over the fetus's life is assigned to the fetus or to the mother; and that determination—the locating of the boundaries of the community whose wealth is to be maximized—cannot be made within economics any more than the economist can decide whether the goal of our society should be to maximize the wealth of the United States or the wealth of the entire world."

It's a kind of Gödel Impossibility Theorem for the law: You can't answer the hard questions from within a deductive system, whether it be economics or formalist jurisprudential conceptions of the "logic of the law," because no such system can adequately prove or conclusively establish the very suppositions on which it is based. At some point, "even one strongly committed to the economic approach to law will have to take a stand on issues of political and moral philosophy."

Posner does indeed take his stand—ta da!—on the side of a kind of moral libertarianism, what he calls "Millian liberalism," a belief that behavior that does not palpably harm others should not be suppressed: "Your rights end where my nose begins." While Posner's own choice is probably of little interest (except to many readers of this magazine, who should be delighted to have so distinguished a guest in their philosophical midst), his focus on the primacy of the "moral" component of decision making has interesting practical consequences for more general questions of how judges should go about interpreting the law.

Once one acknowledges that judging is a moral act—that even judicial action is subject to those "deepest values" that "live below thought and provide warrants for action even when we cannot give those values a compelling or perhaps any rational justification"—one must consider that in a society such as ours, there is (thankfully) no single conception of the good or the just that holds sway. Judges, like any other collection of reasonably thoughtful people, will necessarily bring a maddeningly diverse set of often unarticulated and perhaps inarticulable philosophical or religious or political views to the table when called upon to make the tough calls. There is no use pretending that somehow a magic analytical wand can be waved to cause them to drop that baggage at the courthouse door; indeed, Posner exhibits something resembling contempt for the notion that judges are deductively "reasoning" within some vast, mysterious, top-down, and self-contained logical system known as "the Law."

But that, in turn, seems to sanction just the kind of "unprincipled judicial activism" that conservatives like Posner are supposed to despise. Posner does not shrink from this view; indeed, he looks at it with some relish. He writes:

"I do not object to judges' stretching clauses—even such questionable candidates as the due process clause—when there is a compelling practical case or imperative felt need for intervention….It is easy for legal professionals, and intellectuals of every stripe, to ridicule [an approach that locates] a ground for judicial action in instinct rather than analysis. They can ridicule it for its shapelessness, its subjectivity, it noncognitivism, its relativism, its foundationlessness, and its undemocratic character unredeemed by pedigree or principle. But the alternatives are unpalatable…."

And, a few pages later: "No doubt a judge ought not to use the freedom of his office to try to impose wholesale the natural-law views of Aquinas, or for that matter of Herbert Spencer, or the utilitarian philosophy of Bentham, or even that of Mill, on the nation in the name of the Constitution. Tolerance and restraint are important virtues in judging. But a judge's philosophical or religious or economic or political views are bound to shape his response to specific cases in the open area where judicial decision-making is discretionary. How else are such cases to be decided? The values that all reasonable and rational people in our society endorse make too thin a gruel to resolve the difficult cases. The danger of judicial tyranny should not be exaggerated: The heterogeneity of our society, which is reflected in the composition of the judiciary, prevents judges from legislating comprehensive doctrine."

The great judges—Marshall, Holmes, Brandeis, Cardozo, Black, Harlan—Posner reminds us, "have enriched political thought and practice precisely by bringing controversial values, whether of an egalitarian, populist, or libertarian cast, into the formation of public policy," using their judicial office "to stamp the law with a personal vision."

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.

David G. Post (DPost@eff.org) teaches constitutional and copyright law at the Georgetown University Law Center.