Category: Legal Theory

Posner
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On legal education & legal scholarship — More questions for Judge Posner

We should not allow complacency about the American university system to blind us to the weaknesses in legal education.

I am not starry-eyed about the new interdisciplinary legal scholarship. [Even so,] where is it written that all legal scholarship shall be in the service of the legal profession? 

The decline in doctrinal scholarship is relative, not absolute, and perhaps not even relative; all that may be occurring is a shift in the production of doctrinal scholarship toward scholars at law schools of the second and third tier.

Richard Posner (1995)

This is the fifth installment in the “Posner on Posner” series of posts on Seventh Circuit Judge Richard Posner. The first installment can be found here, the second here, the third here, and the fourth one here.  

Richard Posner’s scholarly career in law may have started in 1961-62 when he served on the Harvard Law Review, first as a staff member and then as the President. During that period he published on topics as diverse as a note on the application of international law to outer space (74 HLR 1154), a comment on federal review of state law rulings (74 HLR 1375), a comment patent and antitrust law (75 HLR 602), and a comment on the application of law to religiously owned property (75 HLR). After his clerkship with Justice William Brennan (1962-63 Term) and several jobs with the federal government, he began his professorial career at Stanford Law School in 1969 and thereafter ventured off to the University of Chicago Law School where he is currently a senior lecturer in law. Over the years he has taught antitrust, economic analysis of law, civil procedure, conflict of laws, law and science, evidence, and law and literature.

Screen Shot 2014-12-02 at 2.03.58 PMOne of his articles ranked 64th in the list of the most-cited law review articles of all time. In the field of antitrust law, one his articles (co-authored with William Landes) ranked second in the listings of the most-cited law review articles. (Posner had his own system of rankings.  See here) Even more impressive, as reported by Fred R. Shapiro and Michelle Pears, “[a]s of 2000, Judge Posner was the most often-cited legal scholar of all time with 7,981 citations, nearly 50 percent more than anyone else.”

In the last half-century or so, Posner has published a wide variety of scholarly works in the form of books (40-plus) and articles (300-plus) – perhaps more than any academic writing in the field of American law. In that array of legal literature he has written much on the topic of legal education and legal scholarship. See, for example, the following nine articles by him:

  1. The Present Situation in Legal Scholarship,” 90 Yale Law Journal 1113 (1981)
  2. The Decline of Law as an Autonomous Discipline,” 100 Harvard Law Review 761 (1987)
  3. The Deprofessionalization of Legal Teaching and Scholarship,” 91 Michigan Law Review 1921 (1993)
  4. The Future of the Student-Edited Law Review,” 47 Stanford Law Review 1131 (1994)
  5. William M. Landes & Richard A. Posner, “Heavily Cited Articles in Law,” 71 Chi.-Kent L. Rev. 825 (1996)
  6. Past-Dependency, Pragmatism, and Critique of History in Adjudication and Legal Scholarship,” 67 University of Chicago Law Review 573 (2000)
  7. Legal Scholarship Today,” 115 Harvard Law Review 1314 (2002)
  8. Against Law Reviews,” Legal Affairs, Nov-Dec. 2004
  9. The State of Legal Scholarship Today: A Comment on Schlag,” 97 Georgetown Law Journal 845 (2009)

Below are some questions on the topics of legal education and legal scholarship I posed to the Judge followed by his replies. (Note: Some links will open in Firefox or Chrome but not in Safari.)

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Question: What do you think is the single greatest shortcoming of legal education in America today?

Posner: There are several shortcomings; I don’t know how to rank them.

  1. Legal education is too expensive, in part because law school faculties are too large.
  2. Not enough law professors, especially at the elite law schools, have substantial practical experience as lawyers, and
  3. Law school teaching focuses excessively on legal doctrine, to the exclusion of adequate attention to facts, business practices, science and technology, psychology, judicial mentality and behavior, legal practice, and application of legal principles.

Question: Insofar as the teaching of legal ethics is concerned, is teaching the rules of professional responsibility and the cases interpreting them enough in your opinion? Or should some significant attention be devoted to familiarizing law students with some of the great works of the Western Philosophical tradition? – say, to Plato’s Gorgias or Aristotle’s Rhetoric (see here at p. 1924)

Posner:  I don’t consider instruction in legal ethics an important part of legal education. Aristotle’s Rhetoric is pertinent to the rhetorical dimension of legal practice, rather than to legal ethics. Gorgias can be read as critical of lawyers’ tricks, though there were no lawyers as such in fourth century b.c. Athens.

Question:  It has been argued that legal education is akin to learning a form of science. In what ways, if any, does it make sense to speak of the study of law as the study of legal science?

Posner: Law has nothing to do with science. It involves making and applying rules of conduct; the rules are based on legislative and other political decisions, common sense, societal values, judges’ personal preferences, intuition, rhetoric—not logical or scientific rigor.

Question: All things considered, what do you think of calls for reducing law school education to two years?

Posner:  I think that would be fine. A third year might be offered, but as something to be taken after the two-year graduate has spent some time in practice and wants some specialized further training.

Question: In your opinion, how, if at all, has the role of the law school dean changed in the past half-century? And if it has changed, what do you make of it?

Posner: Much more emphasis on fund raising.

Question: In Tagatz v. Marquette University (1988) you noted that tenure “tends to take some of the edge off academic ambition.” What are your views on the current tenure system as it operates in law schools and how, if at all, might you change it?

Posner: Tenure is a form of nonmonetary compensation, hence attractive to universities. The downside is it undermines the work ethic. I don’t know whether the benefits exceed the costs.

Question: (1) What are your views concerning affirmative action and tenure standards when it comes to promoting racial minorities? And do democratic principles justify bending evaluative standards?

(2) Is the problem of race the problem of the evaluative standards that law schools employ? If so, what is the alternative?

Screen Shot 2014-12-07 at 11.45.07 PMPosner:  (1) The only racial minority in the United States that needs affirmative action is the African-American minority. I doubt, though, that African-Americans who have the competence to be considered as law professors need a boost.

(2) I think law schools should give more weight to practical experience in hiring law professors, but I don’t think this relates particularly to African-Americans.

Question: Many years ago you wrote: “not all blacks are culturally black.” Would you a say a bit more about what you meant by that and do you still hold to that view? In answering that question, do you think that one can ever fully escape the consequences of his or her color even if one is, as you put it, an “assimilated black”?

Posner: I’m sure that almost all African-Americans are conscious of and think occasionally about being black—that’s inevitable given history, and it’s the same reason that secular Jews, who may have zero interest in Judaism or Jewish culture, remain conscious of being Jewish. But successful upper-middle-class African-Americans are so much like their white counterparts as not to be preoccupied with the racial difference.

Question: Is Socratic “cold call” method dying in law schools? Or is it already largely dead? If so, is this a good thing? Your views? Read More

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The Judge & Company – Questions for Judge Posner from Judges, Law Professors & a Journalist

That’s a sensitive question to put to a judge.

                      – Richard Posner (see below)

This is the fourth in the “Posner on Posner” series of posts on Seventh Circuit Judge Richard Posner. The first installment can be found here, the second one here, and the third one here.

Has any sitting appellate jurist ever entertained a wide swath of questions from a journalist, fellow judges, and law professors? The answer: Never, to the best of my knowledge. But if one had to pick such a jurist, Richard Posner would surely be (and is) that person. True to his realist image, he answered all of the questions posed to him and did so promptly and, for the most part, without reservation. 

In order to get a range of views from different perspectives, I invited a number of noted legal figures to pose questions to Judge Richard Posner. Twenty-four responded; they are:

  • Thomas Ambro
  • William Baude
  • Ryan Calo
  • Erwin Chemerinsky
  • Lawrence Cunningham
  • Michael Dorf
  • Barry Friedman
  • David Hoffman
  • Yale Kamisar
  • Judith Kaye
  • Hans Linde
  • Adam Liptak
  • Andrea Mays
  • Linda Mullenix
  • Robert O’Neil
  • Frederick Schauer
  • David Skover
  • Daniel Solove
  • Geoffrey Stone
  • Kellye Testy
  • David Vladeck
  • Eugene Volokh
  • Kathryn Watts
  • Adam Winkler

Their questions, organized into 26 topics, are set out below followed by Judge Posner’s replies. Hyperlinks have been added where useful. Note: Some links will open in Firefox or Chrome but not in Safari. –RKLC

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I.     Clerking for Justice Brennan

Professor Robert M. O’Neil: Perhaps your most remarkable contribution as a Supreme Court clerk for Justice William Brennan was the total change in the status of Gray v. Sanders (1963).  You initially drafted an opinion for the Justice that would have resulted in a decisive reversal of the Ninth Circuit ruling. But you quickly learned that the Court had preliminarily voted 7-2 to affirm. On the basis of your persuasive draft opinion, however, Justice Brennan promptly asked the Chief Justice to reassign the case. That soon resulted in a 7-2 reversal with only Justices Clark and Harlan dissenting.  Two intriguing questions arise:

  1. Given the oral argument and the statutory context, why were you so sanguine about the prospects for reversal?
  2. And how did you eventually persuade Justice Brennan and four of his colleagues to reach a wholly different result?

[RC: Professor O’Neil clerked with Justice Brennan when Posner did.]

Judge Posner:

  1. I wasn’t. I was under the mistaken impression that the Court had voted to reverse.
  2. I didn’t use any persuasion. When Justice Brennan read my opinion, he said it was persuasive and he’d tried to persuade the Court to change its vote from affirm to reverse. His persuasive efforts must have been effective, though I don’t recall his having said anything to me about them.

Professor Robert M. O’Neil:

  1. Among the Supreme Court opinions to which you made substantial and invaluable contributions, how would you appraise the Philadelphia National Bank (1963) case?
  2. To what extent did Justice Brennan or other members of the Court (or fellow clerks, or for that matter teachers like Harvard Professor Donald Turner) shape your views on those issues?

Judge Posner:

  1. Of the opinions I worked on, that was my favorite. I think it was influential on antitrust law and also convinced me to specialize in antitrust, which I did for the early part of my career, following the clerkship.
  2. The principal influence was Derek Bok, then a professor at Harvard Law School and later, of course, dean of the law school and later still president of Harvard University. He had written an important article on merger antitrust law, part of which I had cite-checked when I was on the Harvard Law Review. The article stuck in my mind and played a crucial role in my thinking about the Philadelphia Bank 
Justice William Brennan

Justice William Brennan

II.     Judging Justice Brennan

Professor Geoffrey Stone: You served as a law clerk to Justice William J. Brennan, Jr., a half-a-century ago. With the benefit of hindsight, how would you assess his contributions as a Justice?

Judge Posner: Obviously, he was very influential, in part because of his warm personality and willingness to compromise. I think Warren relied heavily on him. A number of the Warren Court’s most important decisions were his.

III.     Jurisprudence

Professor Frederick Schauer: When you were a law student, Lon Fuller was a major figure at the Harvard Law School, and only a few years earlier his published debate with H.L.A. Hart was a major event at the school and in legal scholarship generally.

Could you comment on your views about the contemporary state of Anglo-American jurisprudence, whether that state is different from what it was fifty years ago, and, if different, what might account for the change?

Judge Posner: I never met or had a class from Fuller, and never cottoned to his views, and I don’t remember whether I ever read that debate. I never took a course on jurisprudence and I don’t think I had any interest in it. As an academic I became interested in it and wrote about it.

I like your work in jurisprudence, and that of Neil Duxbury and a few others, but much of the jurisprudence literature I find rather sterile. I found Ronald Dworkin’s approach unconvincing; likewise with H.L.A. Hart’s. I love the legal realists, above all Holmes, but also John Dewey, Jeremy Bentham, of course, Hans Kelsen, and Richard Rorty (not an exhaustive list), though law was far from a major interest of Dewey and Rorty.

 IV.     Law in a Globalized World

Judge Judith Kaye (ret):

  1. What is the impact of our radically globalized world on the business of the U.S. courts? How is our jurisprudence, our decision-making process, in any way influenced by the cultural diversity of the international issues we increasingly face?
  2. In that connection, what is the impact of the increased use of alternative dispute resolution mechanisms in international matters, inevitably still requiring resort to our courts?

Judge Posner:

  1. We get more cases involving foreign and international law, but I think the influence of foreign legal practices on our jurisprudence and decision-making processes is slight. We continue to resist inroads into the adversary system. I think that resistance is a big mistake, but I also think it’s a mistake to look to foreign judicial decisions for guidance to how we should deal with issues such as capital punishment, abortion, and international human rights. I think one has to have a deep understanding of a foreign culture in order to be comfortable with borrowing a foreign country’s law.
  2. I don’t know; I haven’t studied the issue, and have only a few cases.

V.     Law & Economics

Professor Michael Dorf: I detect in your academic work (and to a lesser extent your work as a judge) a gradual drift from an economic analysis of law to pragmatism more broadly. Do you agree with that assessment, and if so, what do you think accounts for it?

[RC: Professor Dorf wrote the biographical entry on Judge Posner for the Yale Biographical Dictionary of American Law (2009).]

Judge Posner: You’re correct. It is partly a result of the inroads that psychology has made on economic analysis, partly a result of the economic profession’s failure to understand finance and monetary policy in the period leading up to the crash of 2008, and (relatedly) the revelations of unexpected extensive greed and corruption in American business, not limited to the financial industry.

Professor Ryan Calo: You are famously skeptical of the idea that the law should protect the efforts of market participants to conceal information about themselves. But the beauty of markets lies precisely in their ability to facilitate transactions between parties with wildly disparate backgrounds, tastes, and views — people who otherwise would avoid one another, but come together on the basis of a willingness to pay or receive a particular price.

How do you respond to the contention that a world without a meaningful degree of privacy in such situations would be a world full of balkanized, and hence deeply inefficient, markets?

Posner on Privacy

Judge Posner: I’m not opposed to legal protection of privacy. But I do regard privacy as a common means by which people present a misleading impression of themselves, often deceiving the people with whom they deal, either personally or in transacting. So I think we must be careful not to overprotect privacy.

Justice Hans A. Linde (ret.): You are widely known for linking law and economics and for advocating a pragmatic jurisprudence. These seem to pose two problems for a federal judge:

  1. Federal cases often arise from acts of Congress, not judge-made common law. What should a judge do when an enactment plainly places some people’s non-economic demands over the economic interests of the majority?
  2. Other disputes are between citizens of different states (or nations) that may have different legal answers to the disputed issue. How should a federal judge choose which state’s law applies to the case? That is, should a judge choose the laws of the state that is economically preferable, or is the choice prescribed by law?

MET-AJ-POSNER-0919Judge Posner:

  1. If a statute is clear, and constitutional, then I am bound. But the statutory provisions that get involved in appellate litigation very often are unclear, and then the judge has considerable freedom to select the interpretation that makes the most sense, though it won’t always be an economic sense.
  2. Conflict of law rules seem to me readily understandable in economic terms. If one thinks of the reasons for applying one state’s law rather than another’s, they generally have to do with which state has the greater interest in regulating the activity that gave rise to the suit. That’s the basis of lex loci delicti, which continues to be a sound doctrine that has largely survived modern loosey-goosey conflicts doctrine.

VI.     The Record of a Case

Professor Frederick Schauer: You tend to go beyond the record, the briefs, and oral argument more often than most appellate judges, and you have noted that you have been criticized for it. Could you explain your practice, explain the criticism, and explain why you think the criticism misses the mark?

Judge Posner: I find that the briefs and arguments, and lower-court opinions, very often do not answer the questions that I think are important to a sound understanding of the case. So, I look for the answers, often by an Internet search. I tell lawyers if you don’t like me doing that, do it yourselves. I do try to be sensitive to risk of error in judicial fact research. I understand the criticism, because the lawyers want to control the case. They invoke the glories of the adversary system. I think the adversary system is overrated. Not that I want to convert to the inquisitorial system that prevails in Europe (except the U.K.) and most of the rest of the world, but I want to see the adversary system taken down a peg. I am a big fan of Fed. R. Evid. §706, which allows a judge to appoint his own expert witness, as opposed to having to depend entirely on party experts.

VII.     Experiential Knowledge Read More

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I Am Thankful for Antitrust? Yep.

So you are settling in thinking about food, those who have it, those who don’t, and of course a distraction, antitrust, pops into your head. OK that is unlikely unless you are a nerdy professor, which I am. In all seriousness, I am thankful that friends and colleagues indulge my ideas as I develop them, and that they read work other than what I read. It allows me to pose odd questions, hear what I may be missing, share views that my friends may not have seen, and all are better for it.

The specific, recent example happens to be in antitrust. I was catching up with Spencer Waller and mentioned that I had dusted off early Bork. The man writes quite well. Whether one agrees or disagrees with him, his style and clarity is to be admired. That also poses a danger that Peter Swire alluded to and Spencer helped me overcome. Bork, of course, has critics and some of that criticism is about substance. That is some argue Bork was inaccurate about history and more. So if one wishes to cite Bork, it helps to know where that may lead. Thankfully, Spencer pointed me to an excellent symposium on Bork.

So I am also grateful to the Antitrust Law Journal and Barak Orbach, George Priest, Danny Sokol, and Adam J. Di Vincenzo for organizing and editing the Symposium on Robert Bork and Antitrust Policy. (Volume 79, Issue 3). The range of views and explanations are exceptional. Each essay explores specific ideas or contentions. The authors I have read so far provide a view of Bork and antitrust in general that educates and excites. I look forward to reading the rest.

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The Maverick – A Biographical Sketch of Judge Richard Posner: Part I

auth

Below is the first installment in a multi-part series of posts on Seventh Circuit Judge Richard Posner. The first two installments consist of an unconventional biographical profile of the Judge. These posts will be followed by a series of posts consisting of the Judge’s candid and often unexpected responses to numerous questions I posed to him along with those of 24 noted legal figures. In the process, Judge Posner bursts into the breach with frankness about his views on privacy, the exclusionary rule, NYT v. Sullivan, intellectual property rights, law and economics, constitutional interpretation, legal education and scholarship, and the politicization of the judiciary. With Posnerian resolve, he also speaks of his own life, his onetime thoughts on being a Supreme Court Justice, his cherished feline, and even his favorite rock stars. Given all that, we selected “Posner on Posner” as the title for this series.

Note: Some links will open only in Firefox or Chrome but not in Safari. 

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A man[’s] . . . thinking should be

cosmopolitan and detached. He should

be able to criticize what he reveres and loves.

                                                – Oliver Wendell Holmes, Jr., February 4, 1901

He is like no other. Cool, calm, and calculating (in a methodical sense, that is). To watch him, one might think him shy, if only because of the way he averts his blue eyes when speaking. His complexion is fair (sun sensitive), which makes for a striking contrast to the dark suits he often dons. His appearance is ordinary, highlighted only by a blue Oxford linen shirt and wide-framed rectangular glasses. He speaks in a measured manner and while his voice can be monotonic, his oral style can fluctuate from serious to humorous. At times, his expression is flat, though once and a while a chuckle erupts, prompted by some folly he underscores or some hypocrisy he exposes while discussing this or that point or person. His public conversations with others can seem singular; they smack of a man thinking aloud.

Candor is his calling card, print is his preferred medium, and the moves of the mind are his raison d’être. One is reminded, in a fleeting philosophical sense, of Ludwig Wittgenstein. The “atypical . . . manner and character” of both men only adds to the resemblance. That said, there is one big difference: He is no parlor philosopher; he is a man who lives to transform ideas into action.

To some, he is an irritating gadfly. To others, he is a cold-blooded pragmatist. To many, he is an enemy of liberalism, while to many others he is a foe of conservatism. To more sensitive types, his economics-grounded “thinking is inevitably without compassion and often cruel.” To more cerebral types he is “our most prominent rationalist.” To those whose world is divided along uncompromising ideological lines, his views on the Second Amendment are horrendous and tyrannical, even if he is quite libertarian when it comes to legalizing marijuana, “cocaine, heroin, methamphetamime, LSD, and the rest of the illegal drugs.” To still others, he is a mental maverick gunning for any kind of specious arguments (especially self-righteous ones) that pass for gospel. And to yet others, he is the only one who dares to describe law as it is here on mortal earth rather than how it might be in some utopian salon. In that realist respect, there is even a Machiavellian streak in him.

He is, to be sure, an acquired taste. Even to those who know him, there is a distant quality about his personality. Perhaps because of that, those who know him appreciate his wit and playfulness all the more. Not one to hand out a diplomatic compliment, merit is the measure that rules his life.

Past as Prelude

Richard A. Posner, Harvard Law Review photo

Richard A. Posner, Harvard Law Review photo

He is Richard Posner. At 75, the New York City born jurist shows no signs of slowing down. If anything, his cerebral game is as good or better than it was in 1959 when he graduated summa cum laude from Yale College at age 20 (he was an English major with an avid interest in Yeats) or when he graduated first in his class from Harvard Law School in 1962 (he was President of the Harvard Law Review). 

His credentials as a young man all signaled future greatness – law clerk to Justice William J. Brennan (1962-63 Term), assistant to Commissioner Philip Elman of the Federal Trade Commission (1963-65), and assistant to Solicitor General Thurgood Marshall (1965-67). In that capacity and others, he wrote some 40 briefs and argued ten cases before the Supreme Court. The cases he argued were:

  1. Consolo v. Federal Maritime Commission (1966) (audio here)
  2. Accardi v. Pennsylvania Railroad Co. (1966) (audio here)
  3. United States v. Von’s Grocery Co. (1966) (audio here)
  4. First National Bank v. Walker Bank (1966) (audio here)
  5. Illinois Central R. Co. v. Norfolk & W.R. Co. (1966) (audio here)
  6. Honda v. Clark (1967)(audio here)
  7. United States v. Arnold, Schwinn & Co. (1967)
  8. Will v. United States (1967)
  9. Volkswagenwerk Aktiengesellschaft v. Fed. Mar. Comm’n. (1968)
  10. National Broiler Marketing Association v. United States (1978) (Frank H. Easterbrook was on the brief for the government on the other side)

Posner also served as general counsel on President Johnson’s Task Force on Communications Policy (1967-68). Soon enough the legal academy beckoned him, first as an associate law professor at Stanford (1968-1969) and later as a professor at the University of Chicago Law School (1969-1981). It was during that time that at age 34 he published his momentous work, Economic Analysis of the Law (1973) (now in its 9th edition).

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The virtual Posner

As if all of that were not enough, “Posner augmented his professional life . . . found[ing] Lexecon Inc., a [profitable] consulting firm that tried to put into practice [his law and economic] theories. A large portion of Lexecon’s early business, when he was still a partner, was advising companies as to whether their competitive practices would run afoul of antitrust laws.” In late October of 1981, after his time in the legal academy, Posner then pursued a judicial path as a Ronald Reagan appointee to the Seventh Circuit. In the process, he traded wealth for fame – not what one typically expects from a unapologetic cost-benefit capitalist.

One more thing: In 2006 the ever-colorful Judge stared as an avatar in Second Life, an online virtual community.

The Brennan Clerkship

I was a little disappointed in the Supreme Court. I had a

more elevated opinion of it as a law student than it merited.

                                                                            Richard Posner

To return to his clerkship with Justice Brennan: It came to him via Paul Freund (1908-1992), the famed Harvard professor of constitutional law. In those days it was customary for certain law professors to select law clerks for some of the Justices, this even without a prior clerkship. Young Posner (age 23) was one of Freund’s two picks.

Once he arrived in Washington, D.C., Posner went to work on a variety of jobs for Justice Brennan. It has been reported that during that time he “wrote up an opinion arguing the reverse of Brennan’s [initial sense of the] decision.” Things worked out, nonetheless, and the clerk’s opinion proved “so compelling that Brennan and the Court changed their minds and adopted it.” That unanimous opinion, replete with 83 footnotes, was Sanders v. United States (1963), a habeas corpus case.

Posner also had a hand in writing another habeas case, Fay v. Noia (1963). And then there was NAACP v. Button (1963), a First Amendment civil rights case he authored. For Harry Kalven (1914-1974), the renowned First Amendment scholar, the Button opinion was an important one. “The Court,” he wrote in The Negro and the First Amendment (1965), “offers a generous view of the range of First Amendment protection, a view which seems to me to be indisputably correct although the Court had never previously been given an appropriate occasion for announcing it.” Kalven found it “exciting” that the opinion appeared to break “new ground.”

In a 2013 interview Posner reminisced about his clerkship at the Court: “The most significant experience of my clerkship was happening to work on a case assigned to Justice Brennan, an antitrust case called United States v. Philadelphia National Bank (1963) [the vote was 5-1-2 with Justice White not participating and Justice Harlan dissenting]. And working on that greatly stimulated my interest in antitrust law, and my time in Washington after the clerkship – I was there for another five years – I was mostly concerned with antitrust issues. So that was, I’d say, the most significant experience I had at the Supreme Court.”

Four Brennan-Posner opinions – there is a certain irony here, namely, that these opinions were written by a law clerk who when he became a judge refused to permit his own law clerks to write his judicial opinions. Then again, as Judge Posner once quipped, “Life is full of surprises . . . .”

judgeposner_2010Mind Games — A Multidimensional Man

Richard Posner is a man of the mind. He welcomes the challenges of complexity; he takes pride in showing the hollowness of legal abstractions; and he loves to simplify the complex without leaving it senseless. Speaking in a soft but nonetheless deliberate tone, he delights in exposing babble masquerading as legal argument, and can be rather relentless when counsel persists in being evasive (see, e.g., here).

In a legal world divided, on the one hand, by jurists who demand the rigidities of rules in matters of interpretation, and jurists who, on the other hand, insist on the flexibility of standards, Posner readily sidesteps ideological boundaries. As he sees it, such disputes are better understood as psychological in character than logical in nature. He prefers a more pragmatic contextual approach. To draw upon his own words in MindGames Inc. v. Western Publishing Co. (2000): “some activities are better governed by rules, others by standards.” Thus, in MindGames the Court declined to be bound by a 1924 rule regarding new businesses and lost profits.

Another Posnerian trait: He is not oblivious to the obvious, even when others are. And he does not hesitate to speak sternly when the circumstances warrant it, as in a class actions case (Eubank v. Saltzman) involving a lawyer who took far too many liberties. There, Posner used the opportunity of the controversy to demonstrate the factual oddities and ethical problems with the case, this while offering several learned yet pragmatic observations about this body of the law and its efficient operation. He did much the same in another class action case (Redman v. Radio Shack Corporation) in which he was quite critical of a settlement that offered Radio Shack customers about $830,000 worth of coupons while offering the lawyers who negotiated it $1 million. He was equally outspoken in a recent copyright case (Klinger v. Conan Doyle Estate, Ltd.). And his edgy wit and probing reasoning were much apparent in a pair of recent same-sex marriage cases (Baskin v. Bogan and Wolf v. Walker) in which he was particularly hard on the counsel for the state during oral arguments in those cases.

Color him with many stripes. Posner relishes the study of economics; he savors the lure of literature; he delights in clearing the air polluted by scandalous politics; he enjoys applying his free-market thinking to explain the various economic crises of our time; he relishes the chance to confront head on those issues that bedevil cultural critics; and he loves his life in the law (be it jurisprudence, antitrust, intellectual property, regulatory law, patent law, labor law, criminal law, or constitutional law). In a world increasingly bereft of public intellectuals, he rises from the lifeless ashes like a modern-day Phoenix. True to that cerebral calling, Posner has personal opinions, often controversial, on everything from sexual behavior to judicial behavior and beyond to subjects as diverse as terrorism, global warming, aging, moral and literary theory, and even the risks of catastrophic harm due to an asteroid colliding with the earth.

Unconventional Appeal Read More

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To Sarat or Not Sarat

As in Austin Sarat, Law and Humanities scholar at Amherst College.  As in one of the leading figures within the Association of Law Culture and Humanities, which has become one of my favorite destinations over the years for engaging discussion across the disciplines.  (FYI, today is the deadline to submit abstracts to the Law Culture and Humanities Conference being held at Georgetown this year).
Glancing across Sarat’s scholarship one might notice a fascination with documenting the morbidity of law.  Images of war, death, and imprisonment filter the landscape of writings; the images are used to magnify their contrast. They create discourses in binaries.  We understand legal violence distinctive from non-legal violence; death distinctive from non-death; and imprisonment distinctive from non-prisoned life.  Sarat sums this up in his Article Violence, Democracy, Responsibility, and the Problem of Punishment.

 

Moreover, by equating the conditions of legal legitimacy with that masking, much of that jurisprudence promotes righteous indifference and allows law’s violence to continue unabated. I am neither so idealistic nor so naive as to imagine that a change in legal theory would in itself end violence done, authorized or approved by legal institutions and officials. Still the energy in much of my work on punishment comes from a desire to interrogate legal theory in order to understand how law, surrounded by so much pain, is, nonetheless, able to maintain its calm, bureaucratic facade.

 

Drawing on themes that prompt considerations of justice and violence, it’s no wonder that Sarat and Robert Cover were walking the same halls in New Haven in the early 1980’s.  I don’t know if Sarat and Cover interacted much.  Really, does it matter?  Sarat himself was a well accomplished scholar in the humanities prior to enrolling at Yale (I mean how many of us as one L’s had their professor begin a civil procedure class by reading and discussing our own work?) .  Perhaps he and Cover never interacted.  I’d like to think they didn’t but that the recursiveness of space, time and ideas latched on to them independently as they traveled the halls.

Besides violence, Sarat’s scholarship prompts me to think about similar themes in my own work.   Loneliness has been a particular theme of mine.  Robert Penn Warren, Fydor Dostovsky, and Flannery O’Connor have been shaping devices of this theme.  They play themselves out in a chorus of questions about space, roles, isolation, and time.  When Warren writes about the South as a Lonely place, he prompts me to wonder whether and how time shapes people.  For those three, time is the violence of memory, sometimes maintained through static relationships of property, law, family, and culture.  Sarat likewise prompts us to consider how time shapes our understandings of justice and violence.  He writes in the same article prompted above:

For me, democracy requires a particular orientation toward time. Democratic temporality is the time of change, of reconsideration. It is open-ended and open to a sense of the endlessness of time. Acts of punishment, even if we had a way of calculating what people deserve, are always in some sense the servants, not the masters, of time. Numerous authors have highlighted the problem of time in asking whether the person being subject to punishment, 2, or 12, or 20 years after the crime is really the same person as the one who committed the crime that justified the punishment in the first place. When, many years ago, Justice Brennan described the death penalty as taking away the right to have rights, he might well have said that no punishment that seeks to be timeless, or stop the movement of time, can be reconciled with a democratic theory of punishment.

The conception of time as a marker of change is one, I think Robert Penn Warren would greatly admire.  On May 15, 1961, The New Republic published a review of Warren’s essay The Legacy of the Civil War.  In the review essay, writer Peter d’a Jones aligned Warrens views with Robert Patterson of the Citizens Counsel of Mississippi, a group formed following the Supreme Court’s decision in Brown v. Board of Education.  The group, put simply, was designed to use legal (and non-legal) violence to stymie desegregation.
Following the review of Warren’s essay, Warren wrote a letter to the New Republic editor:

Dear Sir,

This letter is promoted by a review of my essay the Legacy of the Civil War, which appeared in your issue of May 15.  I could wish that Mr. Peter d’a Jones had thought better of my essay or at least of my intellectual integrity, but I am not now writing in defense of either.  What I want to do here is disabuse those readers who may feel, from Mr. Jones’ review that I have much sympathy with Mr. Robert Patterson of the Citizens’ Committee of Mississippi, whom he cites with, perhaps, some effect of guilt by association.  

The quickest thing for me to do is state three things — things which it is strange for any citizen to feel constrained to state.

1 It is morally right, as well as politically and economically necessary, that all the rights and privileges of American citizenship be guaranteed to all citizens.  
2 A man’s worth should be judged by the qualities of his manhood.
3 Any official of any state who does not honestly and vigorously endeavor to punish, with full rigor, any violence against or coercion of any individual or group has violated his public trust and should be impeached.  

I suppose that a reader can easily infer from these statements my attitude in specific instances, as I had assumed one might from other writings of mine, including the Legacy of the Civil War; but I shall add that I think Dr. Martin Luther King a great man, and that the sit ins conducted according to his principles are morally unassailable, and will win.  One reason they will win is that they offer, even to the man howling from the sidewalk, an exhibition of courage, dignity, and self control.  

                        Very Respectfully Yours,

                        Robert Penn Warren

P.S.  One more thing: since Mr. Jones takes the trouble to quote from me in 1929, I wish he had taken the trouble in his researches to glance at my explicit repudiation some time back, of what I said in 1929.  In 1929, in my youth, I was wrong — and even now, I do not feel myself entirely above error.  

Warren’s reflection of change over time merges with his views of social responsibility.   For what its worth, Warren was also wandering around New Haven in the early 1980’s.  How I would enjoy sitting at a table amongst Warren, Sarat and Cover as they talked about these things.  How the walls in New Haven must have been ablaze with ideas in the early 80’s.

(P.S. Robert Patterson was also former Captain of the Mississippi State football team — ergo my promised college football reference, in case anyone needed an irrational reason to hate the number one ranked team).

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Radical Pragmatism

Cambridge Companion to Pragmatism 01I recently posted on SSRN a book chapter I co-authored with Professor Michael Sullivan (Emory, Philosophy).  The chapter is called Radical Pragmatism and it is in The Cambridge Companion to Pragmatism pp. 324-344 (Alan Malachowski, ed. 2013).  This is a much shortened version of an earlier essay we wrote critiquing Judge Richard Posner’s conception of pragmatism.  We have tightened the argument, and this piece makes our key points much more succinctly.  Here’s the abstract:

“[P]ragmatist theory of law is, like much pragmatist theory, essentially banal.” So wrote Thomas Grey at the dawn of pragmatism’s renaissance in legal theory. Several contemporary pragmatists, as well as a number of critics of pragmatism, view pragmatism as a thin theory, more of a method than a philosophy with substantive commitments. For example, Richard Posner, one of the leading contemporary pragmatists, asserts that “pragmatism is more a tradition, attitude, and outlook than a body of doctrine” and that it has “no inherent political valence.” Likewise, Richard Rorty contends that pragmatism “is neutral between alternative prophecies, and thus neutral between democrats and fascists.”

Under this view, pragmatism generally leads to cautious common-sense policies. It is far from radical and unsettling, for it is too lacking in substantive value commitments to be otherwise. In this book chapter, we contest this account of pragmatism and offer a thicker account. Pragmatism does indeed have a political valence. It has substantive values. And, far from being banal, it is radical at its core.

You can download the chapter on SSRN.

A More Nuanced View of Legal Automation

A Guardian writer has updated Farhad Manjoo’s classic report, “Will a Robot Steal Your Job?” Of course, lawyers are in the crosshairs. As Julius Stone noted in The Legal System and Lawyers’ Reasoning, scholars have addressed the automation of legal processes since at least the 1960s. Al Gore now says that a “new algorithm . . . makes it possible for one first year lawyer to do the same amount of legal research that used to require 500.”* But when one actually reads the studies trumpeted by the prophets of disruption, a more nuanced perspective emerges.

Let’s start with the experts cited first in the article:

Oxford academics Carl Benedikt Frey and Michael A Osborne have predicted computerisation could make nearly half of jobs redundant within 10 to 20 years. Office work and service roles, they wrote, were particularly at risk. But almost nothing is impervious to automation.

The idea of “computing” a legal obligation may seem strange at the outset, but we already enjoy—-or endure-—it daily. For example, a DVD may only be licensed for play in the US and Europe, and then be “coded” so it can only play in those regions and not others. Were a human playing the DVD for you, he might demand a copy of the DVD’s terms of use and receipt, to see if it was authorized for playing in a given area. Computers need such a term translated into a language they can “understand.” More precisely, the legal terms embedded in the DVD must lead to predictable reactions from the hardware that encounters them. From Lessig to Virilio, the lesson is clear: “architectural regimes become computational, and vice versa.”

So certainly, to the extent lawyers are presently doing rather simple tasks, computation can replace them. But Frey & Osborne also identify barriers to successful automation:

1. Perception and manipulation tasks. Robots are still unable to match the depth and breadth of human perception.
2. Creative intelligence tasks. The psychological processes underlying human creativity are difficult to specify.
3. Social intelligence tasks. Human social intelligence is important in a wide range of work tasks, such as those involving negotiation, persuasion and care. (26)

Frey & Osborne only explicitly discuss legal research and document review (for example, identification and isolation among mass document collections) as easily automatable. They concede that “the computerisation of legal research will complement the work of lawyers” (17). They acknowledge that “for the work of lawyers to be fully automated, engineering bottlenecks to creative and social intelligence will need to be overcome.” In the end, they actually categorize “legal” careers as having a “low risk” of “computerization” (37).

The View from AI & Labor Economics

Those familiar with the smarter voices on this topic, like our guest blogger Harry Surden, would not be surprised. There is a world of difference between computation as substitution for attorneys, and computation as complement. The latter increases lawyers’ private income and (if properly deployed) contribution to society. That’s one reason I helped devise the course Health Data and Advocacy at Seton Hall (co-taught with a statistician and data visualization expert), and why I continue to teach (and research) the law of electronic health records in my seminar Health Information, Privacy, and Innovation, now that I’m at Maryland. As Surden observes, “many of the tasks performed by attorneys do appear to require the type of higher order intellectual skills that are beyond the capability of current techniques.” But they can be complemented by an awareness of rapid advances in software, apps, and data analysis.
Read More

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UCLA Law Review Vol. 61, Issue 4

Volume 61, Issue 4 (May 2014)
Articles

Expressive Enforcement Avlana Eisenberg 858
Insider Trading as Private Corruption Sung Hui Kim 928
Marriage Equality and Postracialism Russell K. Robinson 1010

 

Comments

Fast and Furious, or Slow and Steady? The Flow of Guns From the United States to Mexico Jessica A. Eby 1082
Parole Denial Habeas Corpus Petitions: Why the California Supreme Court Needs to Provide More Clarity on the Scope of Judicial Review Charlie Sarosy 1134

 

 

 

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Economic Dynamics and Economic Justice: Making Law Catastrophic, Middling, or Better?

Contrary to Livermore,’s post,  in my view Driesen’s book is particularly powerful as a window into the  profound absurdity and destructiveness of the neoclassical economic framework, rather than as a middle-ground tweaking some of its techniques.  Driesen’s economic dynamics lens makes a more important contribution than many contemporary legal variations on neoclassical economic themes by shifting some major assumptions, though this book does not explore that altered terrain as far as it might.

At first glance, Driesen’s foregrounding of the “dynamic” question of change over time may, as Livermore suggests, seem to be consistent with the basic premise of neoclassical law and economics:   that incentives matter, and that law should focus ex ante, looking forward at those effects.   A closer look through Driesen’s economic dynamics lens reveals how law and economics tends to instead take a covert ex post view that enshrines some snapshots of the status quo as a neutral baseline.  The focus on “efficiency” – on maximizing an abstract pie of “welfare”  given existing constraints —  constructs the consequences of law as essentially fixed by other people’s private choices, beyond the power and politics of the policy analyst and government, without consideration of how past and present and future rights or wrongs constrain or enable those choices.  In this neoclassical view, the job of law is narrowed to the technical task of measuring some imagined sum of these individual preferences shaped through rational microeconomic bargains that represent a middling stasis of existing values and resources, reached through tough tradeoffs that nonetheless promise to constantly bring us toward that glimmering goal of maximizing overall societal gain (“welfare”) from scarce resources.

Driesen reverses that frame by focusing on complex change over time as the main thing we can know with certainty.  In the economic dynamic vision, “law creates a temporally extended commitment to a better future.” (Driesen p. 52). Read More

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To Define the Beginning of Human Life or Not, That Is the Question

Twice a month I meet with some of my students for a critical reading.  In our last January meeting, we decided to commemorate Roe by re-exploring Judith Jarvis Thomson’s  seminal article A Defense of Abortion. Thomson’s defense of induced abortion by exploring our moral duties in the unrealistic case one found oneself kidnapped and plugged in to a virtuous violinist who is sick and needs one’s kidneys for nine months in order to heal has been highly criticized. Nonetheless, every time I read it or discuss it, I find how enlightening her thought experiment still is, as it confronts us with our set of moral beliefs and its incongrueties with our policy stances. Moreover, it makes me always ponder about our lack of a well-thought and coherent abortion regulating scheme.  But that is a topic for a different post. Today, I would like to concentrate on a related matter that stemmed from my discussion of Thomson’s article with my students.

By the end of our conversation my students and I were inquiring whether it was possible to assert a defense of stem cell research/therapy even taking for granted the right of life of the embryos, as Thomson did in her paper. It seemed obvious for almost all of us that using embryos for those purposes would be considered a blatant deprivation of the embryo’s right to life and an impermissible use of another person’s body; and thus, could not be sustained under Thomson’s argument. So we decided to try to come up with a scenario similar to Thomson’s violinist that could aid us in exploring the moral adequacy of stem cell research/therapy.

An appropriate thought experiment eluded our not so brilliant minds. We did not want to come up with a fallacious and common place thought experiment such as the one of the burning building test  in which one is forced to decide who to rescue first: twenty 8-cell embryos kept in a freezer or a baby in peril. We were not looking to formulate an experiment tilted to one side like the burning building test, in which the “incomplete human character” of the embryo is made self-evident by the “inescapable instinct” to rescue the “actual” human being. However, the truth is that it is quite difficult to come up, in a couple of minutes, with a reasonable possible scenario in which all the circumstances of stem cell research/therapy are replicated in a way that could sensibly help us assess our moral agency.

First, we would need to come up with a scenario in which we have a “human being” in a permanent frozen state (e.g. a cryogenized virtuous violinist) in which the conditions necessary for a successful life require a willing human host that is either related to the cryogenized violinist or has the authorization of his guardian to serve as a host for nine months.  Second, we must come up with a particular circumstance (e.g. a military operation) that would force the guardian of the cryogenized violinist to choose between using the frozen body to help in the recovery of a sick non-cryogenized human being (e.g. a  young Science Nobel laureate) whose only real, feasible and cost efficient chance to a healthy life is using that frozen body at the expense of eliminating all possible chances of an uncertain future life for the cryogenized violinist or leaving the cryogenized violinist frozen for an indefinite period of time and allowing for the sick non-cryogenized Nobel laureate to die. Finally, we would need to come up with the circumstances that led the cryogenized violinist to be treated as a surplus human being and at the same time be treated as the raw materials for the creation of future equally virtuous violinists (e.g. the practice of cloning virtuous musicians).  Furthermore, the example would need to consider the possibility of making the cryogenized violinist for the sole purpose of healing the sick non-cryogenized laureate (e.g. the possibility of the world coming to an end if the Nobel laureate does not find a solution to the problem before he dies from her sickness).

The end result is a very absurd, unrealistic and perhaps too intricate thought experiment.  Yet, exploring the limits of such an experiment may be a possible way to coming up with a defense of stem cell research/therapy even when one grants the right of life of the embryos.  Nonetheless, I would like to pose that the absurdity and illusory nature of these thought experiments suggest that we should face the inevitable: we must delimit when human life begins if we truly would like to come up with a moral/ethical regulation of stem cell research/therapy. This inescapable moral question is more evident when we contrast our legal stances and nation’s practices on issues like torture, war, death penalty, abortion, euthanasia and justification and necessity defenses.  The system is manifestly incoherent.

I do believe that a sensible answer will only come when we legally embrace the fact that life – and by extension human life – exists in a continuum. Law should echo that reality. A coherent and ethical sound system can only arise after we legally recognize that there is a point in that continuum in which life becomes human and that there are different stages before that point in which life is a subject of certain rights but not the same rights a human life is a subject thereof. Laws should define that moment and those stages. There is no moral reason to avoid doing so. As there is no ethical rationale either to treat totipotent, pluripotent, multipotent, oligopotent, unipotent cells, fully developed human beings not capable of living on their own, and born human beings in the same way.  Furthermore, our history and legal system have always made distinctions on how we treat the right to life of human beings based on particular deontological assumptions.

Our inquiry into how to regulate stem cell research/therapy should not be made under the assumption that embryos are in fact human beings and subjects of the same rights. A valid answer to this recent human reality must be based on a rigorous analysis of moral questions such as: 1. When does a life become a human life?; 2. Which type of rights is a non-human life entitled to?; 3. Are there different stages of a non-human life?; 4. Are those stages deserving of a differentiated right treatment?; 5. What are our moral duties to a human life?; 6.  What are our moral duties to a non-human life and it corresponding stages?; and 7. Under which circumstances are we relieved from those duties to human and non-human lives? These questions should be guiding our legislative process regarding scientific inquiries and not biased assumptions as to what constitutes human life.