Book Review

Citation(2016) 28 SAcLJ 723
Date01 December 2016
Published date01 December 2016

1 Divergent Paths2 is a commentary and thesis on the Judiciary and the academia, inspired by the belief of the author, Richard Posner, that the critical analysis of judges has been neglected. That, he says, is partly because of the growing trend in interdisciplinary studies. He is concerned that no one is studying what goes on inside the minds of judges. He thinks that judges are treated like “black boxes”–“Evidence and arguments go in, a decision eventually comes out, but no one seems to know, to be telling, what happens in between.”3 So perhaps he has opened up his own mind for study. He confesses that he can only talk about the elite law schools and not the non-elite ones of which he says he knows not much. He also claims to speak only about the Federal Courts of Appeal, not “other American courts” of which he knows little.

2 As to the other branch of the legal profession that he writes about in this book, Posner says that there has been little criticism from the academia about how judges work partly because professors are specialists whereas judges are generalists. He also thinks that professors associate analysis and critique with criticism, and maybe some judges also think so. A third reason he suggests is that professors are often too pally with the judges and therefore avoid unfriendly moves such as writing critically about judges or their judgments.

3 The first reason Posner gives for the Judiciary's disinterestedness in academic articles is the problem of wordiness. He

says that academic articles are overlong and “dense with footnotes”.4 If, he says, law students find “verbose, pretentious, obscurantist” legal scholarship as “badges of eloquence”, professors will continue to write like that.5 Judges, on the other hand, will not have “the patience to wade through long articles clogged with footnotes”.6 On the subject of students, Posner thinks that there has been a lowering of standards in the quality of students, partly because of the increase in the number of law schools, and that in turn leads to an increase of faculty members Posner regards as “refugees from more competitive or less lucrative fields”.7

4 Going to the nub of what he finds to be the problems in the judgments of the courts, Posner says that they are insufficiently analytical; many are also written by the law clerks, not the judges themselves – except for a few judges, himself included. He also thinks that, like professorial writing, judgments are also too wordy and full of jargon. Posner quotes Schlag in saying that:8

… the academic practice of writing for judges increasingly appears as a degraded art-form used to communicate with persons who are not listening in order to achieve nothing very much whatsoever.

He finds that one of the consequences of compromise at the appellate court level is that focus on the precise nature of the legal principles is blurred. Posner quotes a passage from the last paragraph of the conclusion of an article by Richard Fallon, and comments that:9

… [j]udges will not understand it even if … they read carefully the forty-eight pages of Professor Fallon's article that precede it – for they won't understand those pages either. Nor will their law clerks understand it, nor law student, nor lawyers … [the article is] of a complexity and pitched at a level of abstraction, that only law professors will understand, unsurprisingly because they are the intended audience.

5 Posner then arrives at the “Great Schism”. His broad thesis is that academia should do more to help judges develop the law, and judges ought to read more academic critiques. This, he says, is not

happening. His book examines why the schism has arisen and how it can be closed. He is aware that in the old days, judges did not cite academics other than dead ones, but that is changing because of the increasing role the law clerks have in drafting judgments. Citing living writers always carries the risk of citer and cited indulging in mutual back-scratching.

6 Posner's criticisms against the Judiciary concern deficiencies in two areas. The first is structural, and that concerns appointments and the salary of judges as well. Posner is also critical of the ability of federal judges to manage their staff and their court, and he discusses this in ch 3. The second concerns deficiencies in functionality, that is, how judges decide. On the latter, Posner has much to say. He is particularly disturbed by the formalist approach to judicial duties. He takes great pleasure in reminding the reader that “no one of the great judges from John Marshall to Holmes to Cardozo, were formalists”.10 In the American context, formalists are contrasted with realists. The former, Posner summarises, exercise judicial restraint (in spite of the obvious tension between precedence and originalism). Realists are activists, in Posner's view, who exercise common sense to achieve practical results. Formalists interpret and apply. That is backward-looking. When faced with a novel issue, the formalist will ask: “What resolution is dictated by existing legal materials?” He will then look to past decisions, often way too long in the past in Posner's view. Legal realism, the heart of Posner's own jurisprudential pinning, is “law without mystical trimmings, verbosity, pretense, obscuratism”.

7 Thus, dense academic writing intended for other academics will not help realist or even formalist judges, although formalist judges with their love for doctrine may incline a little more favourably towards academic contributions. But the realist works differently; he (the realist):11

… forms a preliminary estimate of the best decision in a case by an assessment of the facts (including institutional or systemic facts, such as the possible impact of the decision one way or another on legal uncertainty or on the amount of litigation), and the values and policies...

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