by Richard A. Posner. Cambridge: Harvard University Press, 2008. 408pp. Cloth. $29.95/£19.95/€21.00. ISBN: 9780674028203.
Reviewed by Mark Kessler, Department of History and Government, Texas Woman’s University, email: MKessler [at] twu.edu.
In his latest book, Richard A. Posner – distinguished federal appellate court judge, senior lecturer at the University of Chicago law school, prolific writer and one of the founders of the law and economics approach to legal studies – takes up the question of how judges and justices adjudicate legal disputes by focusing on the processes and calculations they employ in arriving at decisions. Blending broad theoretical interests with his more than twenty years of judicial experience, Posner sets out to provide a comprehensive, systematic, and realistic description and explanation of judicial behavior and to offer suggestions about techniques and methods for judges to employ in rendering optimal legal decisions. Eight of twelve chapters incorporate material from nine previously published articles that has been revised and elaborated to varying degrees. An introduction and first chapter written especially for this book place these materials in the context of contemporary debates surrounding judicial behavior.
In Posner’s quest to develop a positive theory of judicial decision-making, he takes aim at legal formalism, or what he terms “legalism,” the notion that judges rely solely on law and legal precedent to decide cases brought before them. Although legalism accurately depicts judicial decisions in “routine cases,” Posner suggests that judges, lawyers, many law professors, and others interested in legal education and its reform are naïve in the ways in which they think about judicial behavior in many less routine cases, and in most if not all cases involving constitutional law. “I am struck,” he writes, “by how unrealistic are the conceptions of the judge held by most people including practicing lawyers and eminent law professors, who have never been judges – and even by some judges.” In discussing their behavior, judges talk and write in ways that “parrot an official line about the judicial process (how rule-bound it is) . . . though it does not describe their actual practices.” This book, writes Posner, “parts the curtain a bit” (p.2).
While the curtain has been parted, more than a bit, by socio-legal scholars, this book by a highly regarded sitting judge confirms what social scientists like Baum (2006), Epstein and Knight (1997), Gillman (1993), Gillman and Clayton (1999), Langer (2002), Maltzman, Spriggs, and Wahlbeck (2000), Murphy (1964), Segal and Spaeth (2002), and so many others have demonstrated. Politics, ideology, and strategic concerns infuse judicial decision-making. Posner reviews and analyzes some of the major socio-legal works, using them productively to show that judges are and should be perceived as political actors, often acting as legislators. In his depiction of the myths and realities of judicial behavior he [*744] comes across as an early practitioner of critical legal studies. Like the Crits, he writes that “[t]he secrecy of judicial deliberations is an example of professional mystification,” a distortion that “helps them maintain a privileged status.” To overcome “the laity’s distrust” of legal professionalism and judicial power, judges and the legal profession more generally work hard to develop “a mystique that exaggerates not only the professional’s skill but also . . . disinterest.” “Judges,” according to Posner, “have convinced many people – including themselves – that they use esoteric materials and techniques to build selflessly an edifice of doctrines unmarred by willfulness, politics, or ignorance” (p.3).
While law and legal precedent may help explain some decisions, according to Posner, “judges . . . have . . . frequent recourse to other sources of judgment, including their own political opinions or policy judgments, even their idiosyncrasies.” He emphasizes the tremendous discretion possessed by judges, discretion that is a product, again consistent with the views of the early Crits, of law’s indeterminacy in many instances. “American judges,” Posner argues, “are not . . . legalists” (p. 7).
If law and precedent do not explain many decisions, then what does? Turning to socio-legal research, Posner grounds his view of judges and judicial decision-making in the “rich literature ignored by most academic lawyers and by virtually all judges” (p.7) and explores the findings of this research through a conceptual framework that borrows heavily from labor economics and the psychology of cognition and emotion. From these perspectives, “judges are not moral or intellectual giants (alas), prophets, oracles, mouthpieces, or calculating machines. They are all-too-human workers, responding as other workers do to the conditions of the labor market in which they work.” Viewing judges as “workers,” as rational participants in a labor market, Posner focuses on the influences of a great variety of factors on their work product, including personality, role expectations, personal backgrounds and experiences, demographic attributes such as race and gender, ideology, strategic considerations, institutional factors, and concerns about such workplace related factors as pay, the risk of appeals, tenure, and promotion. By and large, Posner’s discussion of judicial behavior is intelligent, nuanced, well grounded in appropriate and diverse scholarly literatures, and somewhat novel in folding concepts and findings from socio-legal research into an analytical framework borrowing from rational choice economics.
In separate chapters Posner provides critiques, often quite trenchant, of writings by academic lawyers and of a trend he sees and decries of “judicial cosmopolitanism,” the use by judges in the United States of international legal precedents. Within these chapters he criticizes an array of judicial opinions and writings, among them important books written by United States Supreme Court Justice Stephen Breyer (2005) and Israeli judge Aharon Barak (2006). These chapters, though quite interesting and even at times entertaining, seem somewhat disconnected from the major themes developed earlier, a product, it seems, of the way in which the volume [*745] is constructed primarily of previously published writings.
Posner uses the insight that judges act politically and as legislators to make a number of provocative suggestions. First, lawyers and judges should learn in law school the realities of judicial behavior. To facilitate such learning, according to Posner, courses in law school should focus on the factors most relevant in judicial choice. Since law schools have a long history of teaching legal formalism, they may need to hire social scientists, political scientists in particular, to assist in efforts at demystification. “It is high time,” writes Posner, that “some realism about judging was injected into the teaching of law. The appointment of political scientists to law faculties – a rarity today – deserves serious consideration” (p.212).
In addition, because much of law is indeterminate, with wide judicial discretion, and many cases present questions of public policy that clearly raise issues centering on policy consequences, answers to such questions cannot be derived from law and legal precedent. Not surprisingly to those familiar with previous works by Posner, he parts company with the Crits at this point as he believes such answers may be most legitimately and objectively derived by using the theories and methods of economics. Answers to important policy questions presented in legal cases, Posner argues, “perhaps can be answered with a fair degree of objectivity by judges armed with basic economic skills and insights.” Posner goes on to write that “[o]bjectivity is one of the main aims of legalists. It can sometimes be achieved by methods other than those of legalism.” Those unconvinced about the objectivity of economic analyses based on calculations of costs and benefits (e.g., Farber and Nelson, 1993; Kennedy, 1998), or about the possibilities of objectivity more generally in a postmodern era, may view this part of Posner’s argument as replacing one source of mystification with another. It is, at the very least, interesting to read an experienced jurist and professor of law who seeks to replace the methods of legal formalism, which he views as often ineffective due to law’s indeterminacy or as cover for decisions based on one’s political views, with one form of social science that itself has been criticized as furthering a particular set of political values. While Posner usefully argues that Bayesian decision theory suggests that judges acting as legal formalists possess “preconceptions” that influence their decision-making, he does not apply that insight to economists or to judges acting as economists in assessing the costs and benefits of various policy consequences related to legal disputes. Thus, it is not clear why economic analyses of legal disputes will produce more objective, less political, less ideological decisions that are not based on, or are influenced less by, preconceptions about what constitutes reasonable or acceptable costs and desirable benefits.
Since, according to Posner, “law is shot through with politics” (p.9) and many legal cases center on disputes regarding policy consequences, judges should act as “constrained pragmatists,” assessing the impact of judicial decisions on the creation of good public policy within the constraints of norms of objectivity, an understanding of the significance of law being predictable enough to guide behavior, and with respect for the [*746] written word in statutes and contracts. Again, this argument will not surprise those familiar with Posner’s previous works, but it may disappoint those seeking more amplification and consideration of the fundamental questions that his normative view of judging and the resulting suggestions raise. How may we think about the judge as policy analyst in a democracy? Are judges actually capable of making “good” policy decisions, if we can agree on a definition of what constitutes “good” public policy? Do we actually want judges, especially those who are not elected to office, making such decisions? If so, what gives them the authority?
Despite the fact that such questions are not addressed in any detail, there is much of interest for students of law and politics in this volume. Posner ranges very broadly over many subjects, reviews a great diversity of scholarly literatures with clarity and insight, and offers a number of fascinating comments and criticisms. Judicial behavior scholars in political science – whether embracing the attitudinal, strategic, or legal model, or some combination of them – will find validation of their research findings in this book, validation supported by the author’s many years of judicial experience. Students of judicial decision-making may also find a new wrinkle or two in the skillful manner in which Posner discusses familiar concepts in what are at times unfamiliar ways.
Ultimately, however, the book is disappointing in an important sense for those sympathetic to Posner’s project. Although his review of existing studies of judicial behavior is fairly thorough, well organized, and analytical, he does not meet his own goal of developing “a cogent, unified, realistic, and appropriately eclectic account of how judges arrive at their decisions in nonroutine cases” (p.19). Yes, he provides some realism, especially for judges, lawyers and some law professors schooled on legal formalism. And, certainly, it is eclectic. But, in part because it is so eclectic his framework and account is not cogent or unified, and it is far from being parsimonious. What we learn in this volume is that there are many and varied extralegal factors identified in previous socio-legal research that a sitting judge believes conform to his experience of relevant influences on judicial choice. And, further, we can understand some of these influences a bit better, or at least from a different perspective, if we think of the judge as a worker in a workplace, apply Bayesian decision theory, and adapt some other concepts from rational choice theory, labor economics, and psychology. Posner’s answer to the question of how judges think appears to be that it is a very complex set of processes, much more complex than legalists acknowledge. Judicial decisions are shaped by a wide variety of factors, some of which may be determinative in particular cases, while others explain other choices. We do not learn much, if anything, from this volume about the conditions under which various clearly specified legal and extralegal factors influence judicial choice. Nor do we learn about the conditions under which law, politics, and policy take precedence in judicial decision-making. Perhaps this is too much to ask, and perhaps Posner himself set the bar too high. It may be enough that this book provides its readers with excellent illustrations of [*747] how one very thoughtful and frequently incisive judge thinks.
Barak, Aharon (2006). THE JUDGE IN A DEMOCRACY. Princeton, NJ: Princeton University Press.
Baum, Lawrence (2006). JUDGES AND THEIR AUDIENCES: A PERSPECTIVE ON JUDICIAL BEHAVIOR. Princeton, NJ: Princeton University Press.
Breyer, Stephen (2005). ACTIVE LIBERTY: INTERPRETING OUR DEMOCRATIC CONSTITUTION. NY: Vintage.
Epstein, Lee and Jack Knight (1997). THE CHOICES JUSTICES MAKE. Washington, D.C.: CQ Press.
Farber, Marianne A. and Julie A. Nelson (eds.) (1993). BEYOND ECONOMIC MAN: FEMINIST THEORY AND ECONOMICS. Chicago: University of Chicago Press.
Gillman, Howard (1993). THE CONSTITUTION BESIEGED: THE RISE AND DEMISE OF LOCHNER ERA POLICE POWERS JURISPRUDENCE. Durham: Duke University Press.
Gillman, Howard and Cornell Clayton (eds.) (1999). THE SUPREME COURT IN AMERICAN POLITICS: NEW INSTITUTIONALIST INTERPRETATIONS. Lawrence, KS: University of Kansas Press.
Kennedy, Duncan (1998). “Law-and-Economics from the Perspective of Critical Legal Studies.” In Peter Newman (ed.) THE NEW PALGRAVE DICTIONARY OF ECONOMICS AND THE LAW. NY: Macmillan Reference Limited. pp. 465-474.
Langer, Laura (2002). JUDICIAL REVIEW IN STATE SUPREME COURTS: A COMPARATIVE STUDY. Albany: State University of New York Press.
Maltzman, Forest, James. F. Spriggs, and Paul J. Wahlbeck (2000). CRAFTING LAW ON THE SUPREME COURT: THE COLLEGIAL GAME. Cambridge: Cambridge University Press.
Murphy, Walter (1964). ELEMENTS OF JUDICIAL STRATEGY. Chicago: University of Chicago Press.
Segal, Jeffrey and Harold J. Spaeth (2002). THE SUPREME COURT AND THE ATTITUDINAL MODEL REVISITED. Cambridge: Cambridge University Press.
© Copyright 2008 by the author, Mark Kessler.