Tuesday, August 13, 2013

How Judges Think - Richard A. Posner (2007)

Oeuvre rule: I have read dozens of judicial opinions by Judge Posner of the 7th Circuit and almost every one of them has been a good read.  I even remember reading one obscure bankruptcy decision which was very entertaining because he went out of his way to highlight the frivolity of the litigant's claims.  He has been a federal judge for more than 30 years.  He has written a formidable number of books and law review articles.  His name is synonymous with "economic analysis" and "law."  He was made to serve on the Supreme Court, but was never nominated because he could not be counted on to "vote along party lines."  He also teaches at the University of Chicago Law School and blogs at http://www.becker-posner-blog.com/.

Last year I applied to be his law clerk.  I applied to about 100 other judges.  Almost all of them sent rejection letters.  A couple actually sent invitations to interview.  Judge Easterbrook (Posner's colleague on the 7th Circuit) sent a postcard rejection.  Posner was the only judge who failed to respond.

And who could blame him?  After all, I sent him my rejected 40 page note on the plight of temporary workers in the wake of the Great Recession, and added, at the end of my mail-merged cover letter, that I was a huge fan of his.  I've heard he likes to have clerks with backgrounds in engineering and science.  So I completely understand.  And I would not be so petty as to criticize How Judges Think based on the mere failure of a response.

But this is not going to make the "best books of Flying Houses" list for one reason and one reason only: it has very limited appeal for a mass audience.  This book is made for law students, professors, law school administrators, judges, lawyers, and anyone who has been faced with the thankless task of poring over law review articles.  Occasionally, it is interesting enough for lay readers, but the proof is in the acknowledgments:

"I have incorporated material from the following articles of mine, though with much revision and amplification: "The Role of the Judge in the Twenty-First Century," 86 Boston University Law Review 1049 (2006) (chapters 3 and 4); "Judicial Behavior and Performance: An Economic Approach," 32 Florida State University Law Review 1259 (2005) (chapter 5); "Reasoning by Analogy," 91 Cornell Law Review 761 (2005) (chapter 7)...." (379)

And six other articles.  So while yes, Judge Posner is an extremely hard worker and probably one the most (if not the most) prolific writers in the history of American law, it appears that he writes his articles with an eye towards incorporating them into a book (though I did read one funny article by him called "Goodbye to the Blue Book" that may not have found its way into a book).  As one recent law graduate told me when I was a 1L, "Posner writes with an eye to being published in casebooks."

Posner begins the book by discussing 9 theories of judicial behavior (attitudinal, strategic, sociological, psychological, economic, organizational, pragmatic, phenomenological, and legalist) and whether judges's decisions are best explained by the political preferences they bring to their cases, largely focusing on the idea that "liberal" judges are appointed by Democrats and "conservative" judges are appointed by Republicans.  Some of this is confusing because it may be difficult to say what separates a "liberal" decision from a "conservative" one.  Of course there are easy cases like Goldberg v. Kelly (a Justice Brennan-authored decision requiring evidentiary hearings prior to the termination of public assistance benefits) and Citizens United (a Justice Kennedy-authored decision allowing corporations to make virtually unlimited expenditures in the area of campaign finance), but as noted in my previous review, certain areas such as criminal procedure do not always allow for such neat "left/right" categorization.

Posner then goes on to discuss the judge as a labor-market participant.  While Posner's reasoning on the matter is sound, it underscores how esoteric this book can get:

"Each bit of information the judge received that bore on that truthfulness [of a witness] would be likely to alter his prior probability [a pre-inquiry estimate of a witness's truthfulness], but not erase it; the prior probability would affect the posterior probability [a post-inquiry assessment of a witness's truthfulness], as in Ω(H/x) = p(x/H)/p(x/~H) x Ω(H), the simplest version of Bayes's theorem.
Ω is odds; the left-hand side of the equation is the posterior odds that some hypothesis, H, is true; the last term on the right-hand side of the equation, Ω(H), is the prior odds; x is the new information obtained in the course of the inquiry; p is probability, and p(x/H)/p(x/~H), the first term on the right-hand side of the equation, is the ratio of the probability that x would have been observed even if H was false (~H). (So if those two probabilities were the same, the new information would not alter the odds; it would be a case of multiplication by 1.)" (66) (brackets mine)

While I may have made that more confusing with my bracketing, it was the simplest way I could sum up what is unquestionably the most unreadable portion of the book.  Thankfully, Posner does bring it down to a more human level:

"Suppose the hypothesis is that the witness--let us say the plaintiff in a sex discrimination suit--is testifying truthfully, and that before she begins to testify the judge sets (almost certainly, unconsciously) the odds that she will be telling the truth at 1 to 3, which is equivalent to a probability of 25 percent (1 out [1+3]).  She testifies, producing new information, x.  Suppose the probability that x would be observed if she was telling the truth is .6, that while the probability that it would be observed if she was not telling the truth is .3, so that the ratio of the two probabilities is 2.  When this "likelihood" ratio is multiplied by the prior odds of 1 to 3, the result is posterior odds of 2 to 3 (1:3 x 2 = 2:3), which is equivalent to a 40 percent probability (2 out of 5) that the witness is telling the truth." (66)

I will not comment any further on Bayesian theory.

I could go through the rest of the chapters and summarize what each one is about, but that would be boring and a needless waste of time.  You may read the Introduction or the Conclusion to the book if you would like a bite-sized morsel of it.  Like any good law review article, it is systematically and structurally precise.  Posner does not exactly come out and say, "I am a pragmatist," but it seems clear that he favors the "pragmatic" behavioral model of the judge over the others.

Sadly, as I often mention when discussing Vladimir Nabokov's thoughts on Thomas Mann, Posner does not have kind words for my favorite Supreme Court Justice:

"Law is a methodologically conservative profession, and 'bad boy' rhetoric such as [Jerome] Frank's advocacy of psychotherapy for judges or Fred Rodell's proposal that the practice of law be made a crime and courts be replaced with administrative agencies including a 'Killing Commission to apply its laws about what are now called murder and manslaughter,' like the antics of the 'crits,' ensured that these scholars would not receive a fair hearing.  That the only avowed legal realist to become a Supreme Court Justice--William O. Douglas--flouted perfectly sensible norms of judging (FN 46) also helped to give realism a bad name." (112-113)
("Here is a sampling of criticisms of Douglas--none by conservatives.  'His [Douglas's] opinions were not models; they appear to be hastily written; and they are easy to ignore.'  L.A. Powe, Jr., 'Justice Douglas after Fifty Years: The First Amendment, McCarthyism and Rights,' 6 Constitutional Commentary 267, 269 (1989).  The carelessness of Douglas's opinions was rooted in his 'indifference to the texture of legal analysis, which arises from an exclusively political conception of the judicial role.' Yosal Rogat, 'Mr. Justice Pangloss,' New York Review of Books, Oct. 22, 1964, p.5.  'Douglas was the foremost anti-judge of his time.' G. Edward White, 'The Anti-Judge: William O. Douglas and the Ambiguities of Individuality,' 74 Virginia Law Review 17, 80 (1988).  Douglas 'refus[ed] to judge in tax cases.'  Bernard Wolfman, Jonathan L.F. Silver, and Marjorie A. Silver, 'The Behavior of Justice Douglas in Federal Tax Cases,' 122 University of Pennsylvania Law Review 235, 330 (1973))." (FN 46)

Posner is generally a very witty writer, but it can be difficult at times to mine through the seeming intellectual elitism of his prose to realize that what he is writing is actually funny.  But other times, he frames the law in a way that laypersons will understand:

"Versions of judicial modesty include [James Bradley] Thayer's principle that statutes should be invalidated only if they are contrary to any reasonable understanding of the constitutional text and Holmes's 'can't helps' or 'puke' test: a statute is unconstitutional only if it makes you want to throw up." (288)

I will make one final point about How Judges Think: while it is probably going to attract little interest from those outside of the "profession," it is good reading for law students, and it will probably be slightly more interesting than your average law review article or casebook reading assignment.  Most law students will probably find the final section of the book, where Posner discusses the political nature of the Supreme Court, to be most entertaining.  He gives brief (but always intriguing, given the level at which his mind is operating) remarks on most of the Justices then sitting in 2007, and delivers a pretty thorough review of Justice Breyer's book Active Liberty.  He also criticizes Justice Kennedy's constitutional philosophy:

"Justice Kennedy's opinions in Lawrence v. Texas (the homosexual sodomy case) and Roper v. Simmons [the juvenile death penalty case] make only limited efforts to ground decision in conventional legal materials.  They could not do more, operating with nondirective constitutional provisions and in the teeth of adverse precedent.  They are appeals to moral principles that a great many Americans either disagree with or think inapplicable to homosexuals or juvenile murderers.  The approach is consistent, however, with the judicial philosophy that Justice Kennedy expressed in the interview from which I quoted in chapter 9, when he said that 'all of us have an instinctive judgment that we make...You make these quick judgments...Judges do the same thing...But after you make a judgment, you then...have to see if that...accords with your own sense of ethics and morality.  And...[you have to understand] that you have the opportunity to shape the destiny of this country.  The framers wanted you to shape the destiny of the country.  They didn't want to frame it for you.'  This is the most powerful judge in America speaking, and, if we may judge from his decisions, meaning what he says--that the framers of the Constitution wanted Anthony Kennedy to shape the destiny of the country in accordance with his own sense of ethics and morality, though it strikes many as quirky." (310-311) (first brackets mine)

While the book reads fairly well from beginning to end, its genre likely falls into "legal theory," and so most readers may pass a chuckle when Posner goes off for five pages about Chief Justice Roberts's "umpire analogy" to judging, but few will stick it through to the end.  Through no fault of its own is the book dated (there are at least four major cases, involving Anna Nicole Smith, the Affordable Care Act, Campaign Finance, and gay marriage, on which Posner likely has something to say), but it is one that is a prime candidate for a "new edition." 

Posner opens up the book with an exclamation point--one of the few in the text--and closes on a powerful salvo, which nicely summarizes his raison d'être:

"For that recognition [that legalism is not the path to reform] to take hold, however, will require a change in the way in which law is taught in law schools.  Realism about judges is sorely lacking there.  Law is taught as if judges were second-class professors, professors manqué--legal analysts lacking the specialized knowledge of the law professor.  The motivations and constraints operating on judges, and the judicial mentality that results, are ignored, as if judges were computers rather than limited human intellects navigating seas of uncertainty.  As a result students are not taught how to present a case to a judge in a way that will strike a responsive chord.  The curious judicial passivity that results from judges' being accustomed to simply decide whatever is brought to them to decide, rather than to initiate anything, has made most judges shy about telling lawyers how they should be presenting cases to maximum effect, thus helping themselves by helping the judges.  The nation needs a better bridge between bench and bar, and its construction must be largely the work of the law schools." (377)

Ultimately that is who will get the most out of this book: law school administrators and practicing lawyers.  While it is highly doubtful that every judge possesses as masterful an intellect as Posner's, I am sure they would find many of his comments to be accurate.  I am sure that by reading this book, and taking out some of the "pro tips" he offers, one could become a better attorney.  Or you could at least learn how not to screw up an amicus curiae brief if you happen to teach at Yale.  

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