How Judge Posner Thinks

Some thoughts on a recent book about Richard Posner

I have recently finished reading William Domnarski’s book on Richard Posner ― for reasons that will become apparent, I hesitate to describe it as a biography ― and want to share some thoughts on it. Be warned though: I am something of a Posner fanboy, and thus start with a favourable pre-disposition to a book that reads, at places at least, like it was written by one of my fellows. That said, as Paul Horwitz wrote in his review, for the New Rambler, of Judge Posner’s own Diverging Paths: The Academy and the Judiciary, “Posner’s greatest fans, if they take him as a model, should be his most engaged critics”. (I think this is also true any intellectual fandom; I try to apply this precept to my own, anyway.) If Mr. Domnarski’s book has a failing, it is probably that the author did not take this wise piece of advice as seriously as he might have.

In a sense, Richard Posner is of course a biography. It proceeds chronologically, from its subject’s childhood in New York, to his studies in English (at Yale) and law (at Harvard), to a Supreme Court clerkship (with William Brennan Jr.), to government work (in the office of the Solicitor General and at the FTC), to academic positions (briefly at Stanford and then in Chicago), to the bench. But after the first chapter, which covers the first three decades of Judge Posner’s life, up until his appointment in Chicago, there is no biography in a traditional sense at all. It is almost as if, having joined the Chicago faculty, Richard Posner simply lived happily ever after ― and I suppose he really has, although his happiness is often of a grumpy kind. It’s not for nothing that he loves cats and, as Mr Domnarski notes, compares himself to them.

Unlike in fairy tales, however, the happy ever after is the real story here ― albeit a purely intellectual, almost a dis-incarnate one. We learn about Judge Posner’s articles and books ― and others’ responses to them; about his questioning style on the bench ― and lawyers’ views on it; about his judgments ― and their citation rates; about how his decisions fared at the Supreme Court ― and how the Supreme Court fares in his writing (the short answer: very badly); and a little about his interactions and debates with academic colleagues (Martha Nussbaum is probably the one who is mentioned most often, but others, including Ronald Dworkin, feature too) ― and their views of him. More than a biography, then, Mr Domnarski has written a study of Judge Posner’s place in American law and legal thought in the last half-century ― the people and ideas who influenced him, his influence on others through his academic and judicial writing, and the reception that his ideas got from those who encountered them.

For a Posner fan, such as myself, this is fascinating stuff. And indeed it should be very interesting reading for anyone interested in American law, or in law tout court, which as an intellectual pursuit is now difficult to imagine without the economic analysis that Judge Posner has championed, especially in the first few decades of his career. Judge Posner has been many things to different people: an object of admiration (albeit tempered with criticism) to some, and a bogeyman to others; a heartless arch-conservative and a “deeply moral” progressive hero. That’s partly because his views have long been too complex for any caricature, but also because they have changed considerably over time, and Mr. Domnarski’s book does us all a service in re-tracing their evolution.

In one way, however, it does come up short. As mentioned above, I think Mr. Domnarski is not always living up to a Posner fan’s duty to be also a critic. He is critical sometimes, to be sure, as when he discusses some of Judge Posner’s adventures in looking for information outside the record, extending even to staging experiments in his chambers (which Josh Blackman has mocked as “judicial fashion shows“). But there might be more to be said about, and against, Judge Posner’s self-styled pragmatism, his admitted lack of regard for constitutional text and other conventional legal authority, and his criticisms of the legal profession’s hidebound ways, then is to be found in Mr. Domnarski’s book.

Alone, Judge Posner is often the child who is willing to cry out the truth about the nakedness, or at least the raggedness of the clothing, of the legal system’s majesty. (In a joint interview that Tom Ginsburg conducted with Mr. Domnarski and Judge Posner this week, the Judge mentioned that he was “brattier” than his classmates at Harvard Law School. He still is brattier than anyone in the legal world, as the interview itself demonstrates.) But what would happen to the legal system if all judges acted as he does, elevating policy at the expense of law? As a critic, Judge Posner scores painful hits when lambasting his colleagues, and lawyers, for a lack of scientific literacy or even curiosity. But what has he really offered in the way of solutions to a problem he eloquently identifies? Mr. Domnarski does not engage with, and mostly does not raise, these difficult questions, and that’s too bad.

These questions however reinforce a point that Mr. Domnarski does make (underscoring it with a running comparison between Judge Posner and his colleague, first at the University of Chicago and then on the 7th Circuit, Frank Easterbook). Judge Posner, in a word, is unique. Perhaps for the better, but mostly I think for the worse, there is not his like, and perhaps never will be. Mr. Domnarski’s study of Judge Posner’s thought and its place in American law is a reminder of what a force this thought has been, and remains.

Humanism’s Heirs

Richard Posner is much on my mind these days. Partly that’s due to the excellent “Posner on Posner” extended-profile-and-interview-series by Ronald Collins over at Concurring Opinions (the latest instalment of which is here); partly to my (re)reading a couple of his books on adjudication (How Judges Think and Reflections on Judging); partly to his recent controversial remarks on privacy at a conference (the entire panel is well worth watching, especially in light of the Supreme Court’s recent cell phone search decision). Perhaps that’s why, when I read Mark Walters’s fascinating article on “Legal Humanism and Law-as-Integrity”, (2008) 67:2 Cambridge LJ 352 (alas, not freely accessible), which traces the intellectual ancestry of Ronald Dworkin’s ideas about law to the common law theorists of the late 16th and early 17th centuries, Judge Posner, no less than the late prof. Dworkin, is an heir to the legal humanist thought.

Summarizing his findings, prof. Walters explains that

[t]he efforts made by humanist jurists of the late-sixteenth and early seventeenth centuries to theorise early-modern common law method produced conclusions on the relationship between law and philosophy, the value of coherence, the nature of interpretation and truth, and the importance of integrity and equality for legal reasoning that resemble, in fundamental ways, the tenets of Dworkin’s theory of law-as-integrity. (373)

But it seems to me that Judge Posner’s “pragmatism” bears as much, if not more resemblance, to the humanist jurists’ conclusions ― as expounded by prof. Walters, on whose account I rely here, on the first and the last of these points.

Regarding the relationship between law and “philosophy,” prof. Walters explains that

[c]ommon law humanism, like humanism generally, denied the distinction between theory and practice. The common law existed as part of a larger philosophical enterprise, and therefore the studia humanitatis were relevant to understanding its substance and form. (361)

This meant, according to one of the jurists on whose work prof. Walters’s account is based, that

[t]he “rules of reason” that “direct our course in the arguing of any case” … derive out of “the best and very bowels of Diuinitie, Grammer, Logicke, [and] also from Philosophie natural, Politicall, Oeconomick, [and] Morrall” ― i.e., the studia humanitatis. (362)

Prof. Walters focuses on prof. Dworkin’s embrace of “Philosophie Politicall and Morrall” as part of his theory of law (which led prof. Dworkin, in work published after Prof. Walters’s article, to treat law as a branch of philosophy). But he says nothing of prof. Dworkin’s lack of interest in the other branches of “philosophy” that interested the humanists. Judge Posner, who helped create the law & economics movement, and is now strenuously advocating that lawyers embrace mathematics and the sciences ― which humanists used to call “natural philosophy” ― by contrast, is very much interested in these areas of the studia humanitatis. Admittedly he may seem be interested in them to the exclusion of moral and political philosophy. He has said, for instance, that

[t]he fundamental difference between [him and prof. Dworkin] is that [prof. Dworkin] believes that there is such a thing as moral reasoning and that it should guide judges, and I, while not doubting that there is such a thing as morality and that it influences law, believe that moral reasoning is just a fancy name for political contention.

Yet even here, the first impression might be misleading insofar as, with their habit of including into the realm of philosophy the areas of inquiry which we dignify, or disparage, with the title of science, the humanists might actually have considered political science, in which Judge Posner is very much interested (see his recent opinion, dissenting from denial of a re-hearing en banc, in Frank v. Walker, a voter-ID case), as a branch of political philosophy, and perhaps even psychology as belonging to moral philosophy. (This is, admittedly, a somewhat speculative claim ― it’s difficult, and dangerous, to guess how the people of a past age would have thought of something that simply did not exist when they lived.)

In any case, beyond the specifics, the whole project of the humanist jurists sounds similar to Judge Posner’s. As prof. Walters describes it,

they were suggesting that the common law was woven into a very specific and developed intellectual tradition associated with the liberal arts and sciences that were (mainly) taught within European universities at the time and that could not be known to judges and lawyers through the spark of natural reason alone.

This echoes Judge Posner’s (somewhat desperate) insistence, in Reflections on Judging, that judges need to be acquainted with

specialized bodies of knowledge in or relating to psychology, political science, education, prison administration, religious practices and institutions, statistics, economics, computer science, biochemistry, fi­nance, personnel management, marketing, medicine, epidemiology, collusion between commercial competitors, intellectual property, terrorism, and the status of members of minority groups in foreign countries, (79)

and any number of others ― and that they cannot rely on “merely intuitive grounding for [their] beliefs” (92). Of course, the scientific disciplines that exist today are vastly different from those that existed 400 years ago, but Judge Posner’s attitude  ― a desire to incorporate the most advanced elements of knowledge available into the law ― seems to be more consonant with that of the humanists than the much narrower project of making law embrace moral reasoning. Indeed, the aim of one of the jurists cited by prof. Walters

to show how common law cases already revealed forms of argument that followed humanist dialectical methods … and also how a more thorough order might be brought to the common law through a more rigorous application of those methods (362)

is an exact parallel to the twin projects of law & economics: the descriptive project, to show how the common law already incorporates important elements of  the most rigorous and sophisticated methodology of its time (obviously, a very different one); and the normative project, to argue for the law’s improvement by further and more rigorous application of that methodology.

As for the role of integrity and equality in legal reasoning, prof. Walters argues that the humanist jurists’ views prefigured prof. Dworkin’s because they regarded “the common good,” conceived “as embracing equality and opposing favouritism to individuals or groups” (370-71) as the criterion for choosing between the principles that could be derived from conflicting authorities ― a way, as prof. Dworkin would say, of presenting the law in its best light. Prof. Walters claims that this conception of the common good meant that the humanists did not have “utilitarian or policy-based grounds for the common law,” which would seem to exclude Judge Posner as their intellectual heir. But I find this assertion hard to understand ― surely one can be a utilitarian and think that the law should aim at public, rather than private, advantage. Posnerian pragmatism, or even a more unalloyed law & economics approach, are not ways of favouring individuals or groups ― on the contrary, they aim at increasing the welfare of society as a whole.

And in other ways, Judge Posner’s views on adjudication are quite consonant with those of the humanists. The idea, for instance, that “the authorities and cases … should rather be examined how they accord with reason, then how many they be in number” (370) foreshadows his denunciations of excessive and mindless citation in How Judges Think. Similarly, Sir John Dodderidge’s claims “that Cases different in circumstance, may be neverthelesse compared each to other in equality of Reason; so that of like Reason, like Law might be framed,” and that “[i]t is not the Case ruled this way, nor that way, but the reason which maketh Law,” (373) which prof. Walters cites as evidence of common law humanism’s embrace of the Dworkinian “values of equality and integrity,” may just as well ― and in my view better ― be seen reflected in Judge Posner’s emphasis on looking at the policy reasons behind the holdings in prior cases in order to extend ― or not extend ― these holdings to apply in the different circumstances of new disputes. Unlike both the humanists and prof. Dworkin, Judge Posner insists that, in such cases, judges are legislating rather than merely applying pre-existing law, but that dispute is, it seems to me, little more than semantic. What Judge Posner means is that precedents cannot be mechanically applied in new circumstances; that an effort of reasoning, of understanding their purposes is necessary before their authority can be extended; and neither the humanists nor prof. Dworkin would have denied this.

Thus Judge Posner’s pragmatic, science-infused approach to adjudication can be seen, as well as prof. Dworkin’s law-as-integrity, as development of the humanist common law thought described by prof. Walters. Indeed, in some ways, it reflects that intellectual tradition better than law-as-integrity does. Just like prof. Dworkin, Judge Posner would likely disclaim the heritage, but prof. Walters is right that we should not place too much stock in such disclaimers.