Reflections on Judging Hardcover – October 7, 2013

Judge Posner () starts many of the chapters in this book with quotations. None capture what the book is about better than very first, on page one, a well know quotation from Albert Einstein: Everything should be made as simple as possible, but not simpler.For one of the themes of this mature work by an influential judge and scholar of the law is how judging, and the law, have become more complicated than they need to be or is good for them today. Posner concludes this exceptionally rich and helpful book by saying:Federal judges are falling behind. The problem is not caseload; it is case complexity. Judges aren’t coping well with the increased complexity, mainly but not only scientific and technological, of modern society. … We judges are not inhabiting this new world comfortably. Rather than try to understand the world outside our books and traditions, we (most of us anyway) burrow deeper into as complex world of our own making. As if to validate Coke’s claim that law is a species of “artificial reason.” Legal formalism is tightening its grip on the judiciary at as time when legal realism has never been more needful. We are complexifying the judicial process when we should be simplifying it, and neglecting the unavoidable complexities pressing in on us from outside the legal culture when we should be embracing and overcoming them.This is a book about three things principally:1. An analysis of the flawed nature of legal formalism (as argued for by Supreme Court Justice Antonin Scalia) and a call for a more modest but also more honest and flexible (and thus useful) approach to judging that he calls legal realism.2. A vigorous and eloquent argument for simple clear writing, and, as a corollary, for judges to write the first drafts of their own opinions rather than foisting them on their law clerks, whose experience in the practical world is less than their own, and whose intervention so early in the drafting process often hides from the judge his or her own errors in reasoning and gaps in understanding of a case.Posner’s heroes among federal judges are Oliver Wendell Holmes, Benjamin Cardozo, both at some time in their careers Supreme Court justices, and Appellate Court judge Henry Friendly. Of Holmes, William Popkin writes: his “language is direct, unadorned, and without artifice, neither magisterial nor professional. He uses language shared by a community that includes both the judicial author and the public audience.” (Holmes once said that a judge’s opinions didn’t have to be heavy in order to be weighty.)Of his own writing (Posner drafts all his own opinions) Posner affirms:“My main reason for trying to write clearly (and I do try –I am not a naturally clear writer) is that unless I reduce the case to its simplest possible terms I can’t be confident that I actually understand it and that my decision is right, or at least sensible (often one can’t be sure what the correct outcome is).”3. A set of detailed recommendations for how judges can be made better prepared to handle the increasingly technical and complicated case material that comes before them.Scholars on the Right sometimes try to paint Posner as a liberal but in truth, he’s neither on neither the Left nor the Right. (He was appointed to the Circuit Court by president Reagan, hardly a Left-winger.) He is, however, ruthless in scouring out self-serving half-truths and exposing pomposities wherever he sees them and I suppose that makes his adversaries eager to brand him. It’s easier to ignore what someone actually says once you’ve stuck a label on him.In sum, this is a very good book –not an easy book to read but a good one-- on an important subject and its audience should be a lot wider than members of the legal profession.

It is easy to see from this book why Judge Posner has become the most frequently cited legal commentator. His range of interests is immense, ranging from law and economics, to national security issues, to the 2000 election, and various jurisprudential topics. Recently, he has focused on his colleagues, federal judges, in several books. This book continues that interest. It is diverse in topics and approaches; but always informative and stimulating.First, to illustrate how one can be selected for the federal judiciary, he devotes the introductory chapter to a brief autobiography. He is particularly interested in suggesting issues that new judges should consider as they ascend the bench. He also introduces one of his major concerns: increasing technical "complexity" that faces judges as they adjudicate challenging cases.To fill in background, Posner next discusses the evolution of the federal judiciary. He raises here several of his fundamental concerns: excessive growth of staff; should law clerks on the appellate level be assigned initial drafting responsibility for opinions (a vehement no!); and the adoption of basic managerial tools to structure judicial caseloads.A third chapter is devoted to his key concern of "complexity." I found this very long chapter not to be particularly effective. He does a better and shorter job on this in his Introduction to the book. One important point that does emerge is that courts may generate their own complexity by deciding cases in a "formalistic" way rather than employing a realistic approach. This reflects Posner's recent shift toward pragmatism in his writings. He develops this theme in depth in his chapter four. Basically instead of conventional legal analysis, Posner wants judges to employ more practical sense and concern about the consequences of their decisions. I think this is one of his most crucial points and this chapter bears careful reading.Posner argues that appellate records are often insufficient. Surprisingly, to me at least, he advocates that appellate judges freely utilize Google research to fill out inadequate factual records. More use should be made of maps and pictures in opinions to help clarify decisions. Counsel who argue appellate cases should find this chapter of particular interest.A most interesting chapter is on "coping strategies." These are techniques appellate judges can use to avoid resolving complexities they face in cases. Judicial self-restraint comes in for a challenging working over by Posner. A particularly rich chapter discusses the very concept of interpretation. His target here is (not for the first time) Justice Scalia's originalism, as discussed in depth in his book (co-authored with Brian Gardner) "Reading Law." By the time his extensive analysis is concluded, its brutal efficiency leaves little of the Scalia approach still standing. This is as fine an example of masterful legal analysis as I have seen. Given all the fussing over how to interpret statutes and the Constitution, this chapter makes a significant contribution to bringing some clarity to this debate.Several more chapters are directed at the appellate process. Tips on opinion writing and appellate advocacy comprise chapter 8. In the next chapter, Posner recounts why he recommends that appellate judges without trial experience spend some time presiding (as they may) over district court trials. Chapter 10 discusses additional recommendations to improve the appellate process. A conclusion raps it all up.So, Posner covers a large amount of ground in 370 pages. This is one of those books where reading the footnotes (which are actually footnotes) is essential. Sometimes the judge does go on a bit too long in making a point (witness the complexity chapter); but if this is "fat" I am all for it. One of the most stimulating books one can read on the federal appellate judiciary, which what with the recent filibuster modifications, is as always heating up as an issue.

Richard Posner n'est pas une personnalité des plus appréciée dans les facultés de droit mais il a tout de même une vision et une approche du droit tout à fait fascinante. Dans cet ouvrage, il approfondit les réflexions présentes dans law pragmatism and democracy et offre également quelques éléments biographiques qui sont des plus intéressants. Il permet également de mesurer l'écart entre le posner des années 1980 et le posner actuel... une très belle et stimulante lecture.

EXCELLENT BOOK