In Chapter 1 of How Judges Think (“HJT”), Posner states the purpose of the work: to provide a “positive decision theory of judging,” that is, “a cogent, unified, realistic, and appropriately eclectic account of how judges actually arrive at their decisions in nonroutine cases.” My thoughts at the very outset, then, are: (1) an approach to judging that is theoretically “eclectic” (i.e., legal pragmatism) is proper; (2) legal pragmatism is “realistic” (i.e., it reflects reality best), and (3) Posner’s book avoids discussing what judges do in routine, that is, the majority of cases, or most of the time (because in those cases legalism rules). With those thoughts in mind, I turn to my main objections in this chapter.
“[T]he criteria of a good judge are contested[, a]nd even where they are agreed upon, their application to a difficult case is likely to be fraught with subjectivity.” Moreover, “[there] is no even agreement that the test of a judicial decision or doctrine should be the goodness or badness of its consequences[, for s]ome legal thinkers believe that law oriented toward consequences is illegitimate.” Therefore, all of these issues are “unsettled.” A couple thoughts here. Since when does a “contested” issue necessarily lead to the conclusion that it is “unsettled?” The answer, of course, is that it doesn’t, for anyone involved in law is aware that well-settled law is contested all the time. Posner is exaggerating here for purposes of setting up his thesis that, in hard cases, the best way of judging is necessarily eclectic and oriented toward consequences. Setting aside the exaggeration (which means it does not accurately reflect reality), it is difficult to understand how judging that is “oriented toward consequences” is not “consequentialist,” which is what Posner goes to great pains to deny in his Law, Pragmatism, and Democracy, for example, at 337: To say that a pragmatic judge proper “has regard for consequences, because they are important to any practical decision, but is not bound by any norm of consequentialism” is (as Posner often does) to say nothing other than consequences are relevant in decisionmaking, and no reasonable judge would deny that.
In any case, Posner is caught in a logical rip-tide of sorts between insisting that legal pragmatism is not “consequentialist” but “refers [to the practice of] basing judgments [in general] on consequences, rather than on deduction from premises in the manner of a syllogism[, and i]n law, pragmatism refers to basing a judicial decision on the effects the decision is likely to have, rather than on the language of a statute or of a case, or more generally on a preexisting rule. So it is the opposite of legalism – or so it seems.”
“Legalism,” which, Posner admits, “remains the judiciary’s ‘official theory’ of judicial behavior,” “hypothesizes that judicial decisions are determined by ‘the law,’ conceived as a body of preexisting rules found stated in canonical legal materials … or derivable from those materials by logical operations.” So far so good. Posner continues on to say “the aspiration of the legalist is that a judicial decision be determined by a body of rules constituting ‘the law’ rather than by factors that are personal to judges ….” Accordingly, the “ideal legalist decision,” for Posner, is “the product of syllogism” rather than the will of activist judges. Therefore, “Legalism treats law as an autonomous discipline … requiring only [the] reading [of] legal materials and performing logical operations, [and thus] the legalist judge is uninterested professionally in the social sciences, philosophy, or any other possible sources of guidance for making policy judgments, because he is not engaged, or at least he thinks he is not engaged, in making such judgments.” True enough, but then Posner claims that this conclusion “counts against” legalism as an accurate description of what judges actually do, citing to the fact that extra-legal materials are more often cited in judicial opinions now than ever in the past, in addition to the fact that judges are expected to have “good judgment,” an attribute not necessary of a good logician, and therefore legalism purportedly places no virtue in being “wise, experienced, [or] mature.”
Both points are flaccid. The former shows only the increased degree of judicial intemperance in today’s judging (as well as perhaps the fact that we now live in the communication age in which information is accessible to courts in a way never seen before), not that legalism isn’t the proper way to go about judging anymore, while the latter is just nonsense: it may be logically true that the application of logic is mechanical in the sense that it is a form of purely a priori reasoning, but the decision to apply legalistic (e.g., logical) methods themselves requires a baseline degree of wisdom that is seldom possessed by the immature and inexperienced.
Next, Posner spends a considerable effort to exaggerated the “influence of politics” in judging, and in doing so relies to some degree of the “science” of the matter to argue that “law is suffused with ideology.” But this, again, is to say nothing more than that there are good judges and bad ones, the latter being those who allow their politics to cloud their judgment, and the former being those to refuse to, or at least do their level-best to exclude them as much as possible. Therefore, Posner achieves very little in claiming that judges are “influenced” by politics, but that is a far cry from the proposition that all judges decide cases on political or policy grounds rather than legalistic ones. (And Posner himself admits as much on p. 47 where be labels those who fall victim to such judicial intemperance as “just an errant minority.”)
Nor is Posner’s discussion of legalists “acknowledging” that “their methods” “close the deal” 100% of the time persuasive, for again Posner must exaggerate: “legalist methods fail in many cases that reach appellate courts, and those are precisely the cases that most influence the further development of the law.” I disagree, for of all the cases tried or otherwise resolved (e.g., by dismissal or summary judgment), only a small fraction of those are appealed, and perhaps 80-90% of those are affirmed, and of the fraction reversed, some portion of those are reversed again (i.e., the reversal is vacated and the initial decision is affirmed). I don’t have any ready statistics in mind here, but feel comfortable hazarding a guess that in any given jurisdiction the law “develops” in the sense of “changes” (in any direction) in less than 1% of all cases adjudicated. And I suspect my guess is on the high end, to be as charitable to Posner as possible. Hence, Posner’s use of the term “many” is quite misleading in this context.
Posner’s comments regarding legalist “meta-rules” (i.e., rules about rules) are equally unpersuasive. Take, for example, his example: “[N]owhere does the Constitution say that constitutional interpretation be strict. That rule must be posited; it cannot be deduced, [and therefore it is merely] a policy choice.” But this clearly begs the question, for the notion that the constitution be interpreted strictly arose only after the constitution had been interpreted far too loosely, that is, unreasonably (e.g., Roe v. Wade). And this is essentially the same argument made by some leftists that Justices in the mold of Scalia and Thomas and Judges like Bork are themselves “activists” because they believe the constitution be interpreted in accordance with close fidelity to the text or evidence available to ascertain original intent of the provisions themselves, and therefore do not give sufficient respect to precedents that disregard text and original intent. In other words, one may only reach this sort of conclusion if one first accepts the notion that bad precedents ought not be disturbed, or that initially “activist” precedents themselves aren’t activist in the first instance.
The last comment I’ll offer on this chapter concerns Posner’s remarks about the “moderate pragmatist,” that is, judges “who believe that the institutional consequences of judicial decisions argue for an approach heavily seasoned with respect for the language of contracts, statutes, and precedents.” Two problems. First, this is just to say that moderate pragmatist judges are not bad judges because they understand that bad judging, which entails not providing “heavily seasoned respect” to text (i.e., “language”) and precedent, will implode the internal logic of our legal system. While “heavily seasoned respect” is characteristically vague, one hopes that it means something like “controls the outcome” in all but the most difficult cases. Otherwise, it is to say nothing meaningful if we assume that good judging entails a close reading of text and precedent, which is to say simply that good judging entails, primarily, traditional legalist methods. Second, the notion that judges respect “the letter of the law” when they judge due to the “institutional consequences” likely to follow from not doing so is itself queer, for I would surmise that it is only a minority of judges who have even thought about this notion. It makes far more sense to say that judges follow “the letter of the law” when they judge because it is the law and their job is to apply it impartially and as neutrally as possible, not out of a fear that not doing so will cause the internal logic of our legal system to implode. And if this is right, then Posner himself has strayed far from the path of described how judges actually think.
2 comments:
- Kevin Currie said…
- “How Judges Think” is a sticky subject for a book; to my mind, I would expect the book to be mostly an empirical study of the types of factors that we can satistfactorily show judges to use, as well as an empirical account of what judges have written about how they decide cases.
Posner’s book, and the first chapter, does some of this. The first part of chapter 1 goes through some surveys aiming to show that at least some judges tend to rule based on political factors some of the time. As Ben rightly notes, this is far from suprising and can be interpreted in two ways: (a) sometimes, judges make bad (extra-legal) calls, or (b) making decisions on extra-legal grounds is neither good nor bad, but just the way it unavoidably is.
So, this is the first question: which interpretation should we take? Ben takes (a) while I choose (b). Ben writes: “But this, again, is to say nothing more than that there are good judges and bad ones…”
Posner’s point, in this and later chapters, is more nuanced than this. What in the world is the foundation for judging a ‘good’ from a ‘bad’ judge that is NOT arbitrary? As Posner writes: “When we say that a judge’s decision is in confomity with ‘the law,’ we do not mean that we can put his decisions next to something called “law” and see whether the are the same. We mean that the determinants of the decision were things that it is lawful for judges to take into account consciously or unconsciously.” (HJT, p. 45)
The problem is that what is “lawful for judges to take into account” means very different things to those subscribing to different judicial philosophies. For Scalia and Black it is statutory text only; for Renquist and Bork, it is the history of what the writers intended; for Breyer, it may include political factors; for Posner, it may include economic factors.
Ben (and anyone else) may strongly feel that one of these accounts of what is “lawful” is the correct one, but Posner’s point is that there is no self-evident (and, I would add, non-circular or self-refferential) way to justify any legal philosophy over any other. When Ben advocates, as he does, that “the constitution be interpreted in accordance with close fidelity to the text or evidence available to ascertain original intent of the provisions themselves,” he is making what he feels to be an obvious point that strict constructionism is the only right way to go. To Stephen Breyer, Ruth Ginsburg, Sandra Day O’Connor, Felix Frankfurter, and scores of other jurists, this is not an obvious default. Posner’s point is that from the “view from nowhere,” there is no obvious or necessary judicial methodology to take.
Ben, I think, falls into the trap of mistaking his “view from somewhere” with the “view from nowhere.” He may feel very strongly that Posner’s insistence that there is no best criteria for judging (in an absolute sense) is wrong because he knows that the one he prefers is correct. But as Posner says, there is nothing written in the Constitution that tells us how we are supposed to interpret it, or what judges may or may not consider when deciding cases.
Now, I do want to get into what I sense is a commonality between Ben and I. For all that I agree with Posner on, I cannot help but see legal pragmatism as an ‘anything goes’ method of the type Posner says it is not. And the danger in this is that Posner’s absolute lack of any standard of what is and is not pragmatism means that he can label as “pragmatism” anything at all! There are times when he suggests that legalism is pragmatic at times, because the result wanted is consistency and appearance of formalism. There are other times when he suggests that looking at the political consequences of a ruling are pragmatic because doing so leads to expedient consequences. So if Posner says on the one hand that judges tend to be pragmatic (whether they know it or not), and on the other leaves “pragmatism” so illy-defined that it can mean anything, then he is saying nothing at all (other than that judges rule the way they feel best as defined by them. Duh!)
Another point that Ben brought up that I want to retouch (as it is mighty relevant to future chapters) is: “Posner’s book avoids discussing what judges do in routine, that is, the majority of cases, or most of the time (because in those cases legalism rules).” I think Ben is right to note this. It would be folly to suggest that many, many cases in the legal system consist of somewhat “easier cases” where the best answer CAN be derived from a formalistic approach (generally, looking at the text and precedent, and deciding via syllogism). In detailing “how judges think,” one would think Posner would focus much of his time looking at these cases and devote a proportionately small amount of time to “How Judges Decide Hard Cases.” I am as disappointed as Ben to find that Posner’s book should, but does not, bear this latter title.
In a later comment (to a later chapter) I will bring up how this acknowledgement (that judges are most likely formalists most of the time and only ‘grasp at straws’ when formalism is not enough,) to fellow pragmatist William James’s “Will to Believe.” There, James advocates that while the majority of questions can be answered by appealing to which answer has the most evidence behind it, IN RARE CASES where the evidence is inconclusive, one may need to take a “leap of faith” for the sake of expediency. It seems like Posner probably means to say something like this about judges but never really does so. First, judges try to decide cases fomalistically, which works much of the time. Only then do judges go outside of formalistic bounds, and only when they need to – in Jamesian “rare cases.” Unfortunately, Posner doesn’t say this, and we are left with the wrong impression that judges make most of their decisions “by any means necesseary.”
Still, I agree with the main thrust of Posner’s arguments: that there really is no “right” way to decide cases in an objective sense. Judicial philosophies are aplenty, and judges choose them based on many different conscious and/or unconscious factors; (later chapters get into various explanations of why certain judicial methodologies are chosen, and none involve deciding which one was decreed from the mysterious On High.) Any attempt to argue otherwise must find some objective grounds to argue why a particular philosophy is not simply a preference, but an objective mandate. I have no idea what such an argument would look like.
- December 31, 2008 11:26 AM
- Benjamin Hayek said…
- As usual, Kevin makes a series of comments that are quite insightful, thoughtful, and with which I largely agree. For example, I agree that a book written by a federal appellate judge entitled “HJT” would be strange if it did not contain some discussion of the factors that go into judicial decisionmaking. That said, Kevin’s use of the phrase “that we can satisfactorily show” makes me a little uncomfortable, for I’m not certain any given statistic is capable of showing us how judges really do think. But this is a small quibble, and not a particularly interesting one, so I’ll just leave it be, for there is a far larger quibble to spend time on below.
And that is the notion that judging in the alleged open areas is by definition “neither good nor bad, but just the way it unavoidably is.” This is one of Posner’s essential points, and one that Posner’s legal pragmatism is supposed to provide an adequate method for addressing, and why at various places Posner beats the diversity drum (for if all judicial philosophies are created equal, then the more the merrier, because diversity in judgment, for Posner, is evidently itself an intrinsic good). For Posner’s pragmatism, however, the “method” is more of a mood or attitude that judges simply give it their best to do what is most reasonable in their own minds and without any rigid fidelity to prior institutions, such as past political decisions and precedents.
For me, Posner’s explanation is inaccurate for four very basic reasons. First, and perhaps foremost, this just isn’t what judges do. It may be what Posner does, of course, but even Posner would admit that most judges would disagree that this is what they do (he’d just reply that they’re deluding themselves, of course, but that is another matter). Second, the very notion that our legal system isn’t premised on the notion that judges aren’t constrained by something, even in the open areas, is just nonsense. Posner seeks to avoid this criticism of the legal pragmatist, however, where he as his does about the “moderate pragmatist,” which is to say, the non-crazy one. Third, not all judicial philosophies are created equal. Some are wise, other are not. Hence, some judges adhere (or purport to adhere) to judicial philosophies that are unwise, which is to say there are good judges and bad judges. Fourth, virtually every seasoned litigator knows what judges are good and what judges are not in his or her given jurisdiction. And the primary criterion lawyers apply when making this judgment is whether the lawyer has confidence that the correct decision will be made by any given judge, which is to say that wherever the rule of law is clear in view of the facts, the right decision will result.
Perhaps an example is in order. I once first-chaired a case (i.e., I was not the “headliner” but the co-pilot) involving an elderly woman plaintiff who slipped and fell on snow and ice outside our client’s business. (And as the co-pilot, my role largely consisted in handling most pretrial discovery and through summary judgment – the stage at which many cases are disposed.) The plaintiff had sued both my client, the lessee of commercial premises, and the lessor, the owner of the mall in which my client’s business was located. The facts where clear in that my client’s lease provided that the lessor was responsible for snow and ice removal outside the entire mall common area, including in front of my client’s business. Nevertheless, my client’s staff would often assist in any snow and ice removal by throwing ice-melt down whenever it could do so during business hours before the owner’s people could “get to it,” so to speak.
So, one snowy day, plaintiff patronizes my client’s business. And before she had arrived my client had thrown down ice-melt on snow and ice that had accumulated during the business hours and before the owner’s people could get to it. On her way towards the door, plaintiff slips and falls on snow and ice. Plaintiff’s lawyer, as plaintiff’s lawyers do, sued everyone related in any way to the business. After conducting minimal discovery, my client moved for summary judgment asking that it be dismissed from the case because the contract (i.e., the lease) between my client and owner provided that the duty to clear all snow and ice was owner’s alone, and therefore any injuries arising out of a failure to fulfill that duty were owner’s problem – not my client’s.
The rule of law as applied to my client couldn’t have been more crystal: good Samaritan third-parties to voluntarily assist one who owes a duty to perform to abate a risk do not thereby expose themselves to liability for injuries arising out of the failure to adequately perform unless the assistance rendered in some way exacerbates the risk. Because discovery had revealed that my client did nothing to exacerbate the risk, it was entitled to summary judgment as a matter of law.
The problem my client faced was that it was assigned to a “bad” judge. And when I mean “bad” I mean that, instead of advising the client that its chances for dismissal were 99%, we advised the client that its chances for dismissal were instead 80%. For, even thought the rule of law was clear in light of our facts, this particular judge often denied summary judgment as a matter of course in situations such as ours to increase the chances of settlement, which would occur because there were more defendants from which the plaintiff might extract enough money in exchange for a full and final release of her claim. Which is exactly what occurred after our motion for summary judgment was denied.
The fact of the matter is that this judge did not feel sufficient fidelity to the rule of law because he believed that other concerned overrode the rule in favor of settlement, be it to spread out the damages among more defendants, to increase the chances that plaintiff was paid (she was, after all, quite injured), or whatever. But the point here is that, I presume, Posner would strain to explain why some of these pragmatic concerns where justified even at the expense of (1) the rule of law being clear and (2) the certainty that results in law when it is applied strictly. Now, obviously, the plaintiff’s lawyer might argue that this is a great thing, and that this judge is, as a result, a great and wise judge. And Kevin might cite to this lawyer’s view as proving that there really isn’t such a thing as good vs. bad judges, just different ways of judging.
That’s fine, but it would in my view conflate the distinction between the political and the judicial to the point of the difference being nominal only. And this, of course, is why Posner goes to this and that argument the purpose of which is to show that there isn’t a sharp distinction between the political and the judicial in the first place.
Posner, and Kevin’s, argument is that there is no self-evident way to justify any legal philosophy over another, which is a version of the larger claim that there is no self-evident way to justify any philosophical propositions at all over another. (Except, of course, that proposition is somehow supposed to be self-evident, one presumes.) Hence, for me, when I say that “the constitution should be interpreted in accordance with a close fidelity to the text or evidence available to ascertain original intent of the provisions themselves,” I view this proposition as no different from that of “mathematics should be performed in accordance with the rules of addition, subtraction, multiplication, division, etc.” (I’m no mathematician), I am stating an obvious, self-evident truth. And, obviously, there is nothing in math that tells us how we’re supposed to follow the rules, just like there is nothing in logic that tells us how we’re supposed to follow the rules. The rules are implicit in the concept and cannot be shown outside of simply performing the mathematical operation (e.g., 2 + 2 = 4 or modus ponens).
Which is to say, are there rules implicit in the concept of law, or more specifically, in the concept of American Constitutional Law? At some level, Posner (and Kevin) will be forced to agree that there are (e.g., rules of grammar and syntax). But if they go that far, then there is no stopping my point: that there are rules implicit in good judging and bad judging, rules implicit in constitutional interpretation, etc. Thus, even if which way of constitutional interpretation (or judicial philosophy) is a matter of serious debate, that some are better than others can’t be. But if that is true, then there necessarily must be a “right answer” to which way is best, even if I were to grant Posner (and Kevin), for the sake of argument, the proposition that we cannot know what it is (which I deny).
To sum up, then, I insist that there is a certain logic implicit in law in general, and a certain logic implicit in American Constitutional Law in particular, that necessarily means that there is a right way and a wrong way of judging. Enough bloviating about this topic however.
As Kevin suggests, I completely agree with the problem that Posner faces regarding legal pragmatism’s at least appearing to be an “empty” method, a method without a methodology, so to speak.
And I also should note that Kevin right to agree with Posner’s view that in hard cases formalists may at least appear to be “grasping at straws” to justify their decisions. But on my view this isn’t a flaw with formalism – this is what formalists ought to be doing when their formalism doesn’t lead to a clear right answer. In other words, formalists ought to grasp at whatever straws they can get their hands on if that’s all that can be done to avoid looking elsewhere to justify decisions. And that’s simply because it is a virtue of justice that past political decisions are supposed to justify legal outcomes, not new ones that descend down upon litigants from the bench.
- January 7, 2009 9:17 PM
