The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The Michigan Law Review's annual book review issue is out, and it contains quite a bit of good stuff.
Among the highlights of this year's issue is a review of Richard Posner's book, The Federal Judiciary: Strengths and Weaknesses, by the Honorable Amul Thapar of the U.S. Court of Appeals for the Sixth Circuit and attorney Benjamin Beaton. The whole thing is worth a read, but here is how the review begins (footnotes omitted):
Just when you thought Richard Posner couldn't write any faster, he managed to squeeze two books into one. The final publication of his judicial career, The Federal Judiciary: Strengths and Weaknesses, is a fitting valedictory for America's most prolific judge. It features a robust procedural critique of the operations of the federal courts, alongside an impassioned substantive call for his colleagues to adopt Posner's brand of judicial pragmatism. Those two theses, however, are hopelessly at war with each other: the case-by-case interpretive pragmatism Posner advocates would directly undermine the systemwide pragmatism he claims to prioritize in the courts' operations.
In assessing federal judges' strengths and weaknesses, Posner finds much to critique. His assessments are incendiary, profound, and trivial—often all on the same page. Readers should arrive with an appetite: a single paragraph on page 21, for example, covers the courts' reliance on multifactor tests and canons of construction, lack of candor, verbosity, jargon, pretense of objectivity, inadequate caseload, inadequate argument time, inadequate schedule, and use of the dreaded Bluebook.
Many of these staccato objections echo portions of Posner's past works. This particular book's most sustained and relevant criticism is that the bench and bar are too rigid and reactionary: backward-looking "formalism," focused on dusty precedents and historical meaning, often masks judges' true reasoning. By elevating form over substance, Posner suspects, advocates and judges apply a veneer of objectivity to half-baked arguments, political preferences, and outcome-oriented decisions.
This first thesis, criticizing legal rigidity, contains a grain of truth. Lawyers and judges can be a stodgy bunch. And that can make the law less accessible and less sensible. Posner highlights many aspects of our system—from the courts' pace to the caselaw's complexity—that could improve with a less formulaic and more plainspoken approach. When briefs and opinions elevate form over substance, they can obscure the governing legal principles and diminish the utility of the judicial process as a whole.
But Posner's second major thesis, advocating consequentialist interpretation, is a strange response to this problem. Posner complains that formalist judges are using interpretive tools to achieve outcomes they like. His solution? Replace the formalism that he believes is backward-looking with an aggressive substantive pragmatism that eschews traditional limits of judicial restraint and democratic accountability. But if the problem is masking outcome-driven decisions with legalese, isn't the solution more transparency, sounder reasoning, and greater objectivity? Not according to Posner. Instead of binding policy-driven judges to the rule of law, Posner would liberate them to do justice as they see fit—at least when they can avoid any textual or precedential barriers "by hook or by crook."
Setting aside problems of popular consent and separation of powers, Posner's version of pragmatic case-by-case judging, when considered in the aggregate, fails even on his own pragmatic terms. Litigants, lawyers, and judges depend on the stability and ascertainability of the law. Yet without an advance commitment to basic interpretive principles (those formal legal texts, precedents, and rules of interpretation this book disparages), who can anticipate how a judiciary of Posnerian pragmatists would articulate and apply that law? Everything is up for grabs when judges opt "not to worry initially about doctrine, precedent, and the other conventional materials of legal analysis, but instead to try to figure out the sensible solution to the problem[s]" before them.
This view of the judge's role is fundamentally at odds with our experience litigating and deciding cases in the federal courts. Equally important, "pragmatic" interpretation unleashes great unpredictability outside the courtroom: it becomes hard to advise clients, arrange legal relationships, and plan everyday conduct.
Posner's substitution of forward-looking pragmatism for backwardlooking (which is to say, ordinary) tools of legal interpretation, therefore, would only exacerbate the operational shortcomings he critiques. And vice versa: his operational critiques—though often valid—have little to do with his substantive critique of legal formalism. From our perspectives in and among the federal judiciary, Judge Posner's cure would only worsen the disease.
Read the whole thing.