His New Book, Thoughts On Coverage, How To Fix Law School, and Debating Justice Scalia
Let me make this simple. Richard Posner has been a judge on the powerful Seventh Circuit Court of Appeals for close to 32 years and is a senior lecturer at the University of Chicago Law School (starting as a law professor there in 1969). He has written nearly 40 books on a host of legal, economic and other topics and hundreds of articles and book reviews. He co-authors a widely read blog. One law journal identified Judge Posner as the most cited legal scholar of the 20th century. And it doesn’t look like he’s been playing a lot of golf in this century.
But more than just writing extensive judicial opinions, academic works and commentary, Posner’s topics often-times have many points of view. And then there’s the fact that he says exactly what’s on his mind. He also has a highly visible platform for expressing his views. Needless to say this is a cocktail for creating critics. Posner has them. He is unlikely to be hired for the Dale Carnegie faculty.
Hang in there. I’m getting to the simple part. Once in a while when a judge cites a case in an opinion he chooses to add a parenthetical, after the cite, naming the judge who authored it. While this happens only now and then, it happens with regularity when opinions cite to one of Judge Posner’s cases. There’s a cite to a Seventh Circuit case and there’s “(Posner, J.)” added to it. Why is this done? It is a court’s way of adding emphasis to the citation because of the judge who authored it. Think of it as a citation with an exclamation point.
As I said, this is not commonly done. Yet it happens a lot when Judge Posner’s cases are cited. But how often? I poked around on Westlaw to try to figure that out. My conclusion – about 1,700 judicial opinions cite a case with “(Posner, J.)” added to it. And this does not include cases where the parenthetical was used simply for the purpose of indicating that the citation is to a Posner dissenting or concurring opinion. Then there are those cases where Judge Posner’s authorship is noted but in a different format. Instead of a citation to one of his cases being followed by “(Posner, J.),” the court, when describing the case, specifically states that it was penned by Judge Posner. I estimate that there are in the ballpark of 1,000 of such cases (this search was harder to do). These numbers are staggering, especially when you consider that most judges, even distinguished ones, rarely, if ever, get mentioned as the author of a cited case.
What’s the point of all this? Simple. You can argue with Judge Posner about his views on certain topics. But there is no argument that his opinions command incredible respect from his fellow jurists.
I’ve always enjoyed reading Judge Posner’s decisions because I love their conversational tone and ease to understand. They read as if he’s a guy I sat down next to on the train, we started a conversation and the case is a story that he’s telling me. Beyond that it seems a daunting task to study Judge Posner given his extensive catalogue of work. So I was thrilled to learn over the summer that he was publishing a book in September called Reflections on Judging. And from Amazon’s description -- “Richard Posner distills the experience of his thirty one years as a judge of the United States Court of Appeals for the Seventh Circuit.” -- it sounded like one-stop shopping for learning much more about Judge Posner.
I reached out to Judge Posner over the summer and asked if I could send him a few questions about Reflections on Judging after it was published. He graciously agreed. And when the time came I couldn’t resist throwing in a couple about insurance coverage. Of course. As for what Judge Posner told me about coverage, that’s discussed in a separate article that starts on page 7. The article also contains one coverage lawyer’s list of Judge Posner’s most significant cases addressing liability coverage.
Reflections on Judging is close to 400 pages and covers a wide range of topics. I can’t even come close to adequately summarizing it in the small amount of available space that I have. I feel awful that I can’t do this superb book the service that it deserves in describing it. Let me take this approach. Here are seven things to know about Reflections on Judging.
1. As I hoped it would, Reflections solves the problem of wanting to learn more about this incredible jurist, but feeling overwhelmed by the volume of literature and not knowing where to begin. Reflections is somewhat of the Nutshell on Posner. It covers his upbringing, career before taking the bench and views on many aspects of the legal system and federal judiciary. And, most importantly, if your objective is to learn more about Posner, and what makes him tick, the book addresses, in detail, his decision making process (and as it compares to others). More about this below.
I asked Judge Posner if his decision to write a book called Reflections on Judging, not to mention with nearly 32 years on the bench, was a signal that retirement (at least from the bench) may be near? Or was this simply the right time to write such a book? He replied no to the retirement question and “[i]t was the ‘right time’ only in the sense that the problems I discuss in the book had become more serious in recent years.”
2.The judicial confirmation process for federal appellate judges has become political and mean-spirited. Today a candidate for the federal bench can be disqualified if it is learned that he once gave out loose candy corns to trick or treaters. But it wasn’t this way in 1981 when Posner was appointed to the Court of Appeals. Even by then he had a track record for controversial views. Nonetheless, despite his paper trail, the entire confirmation process was basically one question -- what size robe do you wear? It is riveting to listen to Posner describe his confirmation process when you know how it would play out in today’s environment. The way it works nowadays Posner may not be confirmed as dog catcher is some places. Judge Posner notes that, owing to the political polarization of the Senate, there are fewer federal judges that are “duds,” but also fewer that are “stars.”
3. Judges and the judicial process are generally secretive. But Posner speaks his mind and reveals how the sausage is made – or not. “Judges understandably are uncomfortable issuing opinions to the effect that ‘we have very little sense of what is going on in this case. The record is poorly developed, and the lawyers are lousy. We have no confidence that we have got it right. We know we’re groping in the dark. But we’re paid to decide cases, so here goes.’ Yet that is the subtext of countless appellate opinions.
I asked Judge Posner something that I’ve often wondered about a federal appellate judge: How accurately can you predict the votes of your colleagues on a panel? Just like everything else in the book about the judiciary, Posner pulled back the curtain. Instead of some wishy-washy non-answer answer he replied: “Depends on when. Before the oral argument, I can usually predict. After oral argument, when I’ve listened to the other judges’ questions, I can predict even more accurately.”
4. Posner’s views toward the silliness of the Bluebook are well-known and he shares them in Reflections. Since I also believe that the Bluebook is moronic, this was one of my favorite parts. He has a simple solution to the Bluebook – he doesn’t use it. One of the best lines in the book: “My judicial and academic writings receive their share of criticism, but no one to my knowledge has criticized them for citation form.”
5. Posner weighs in, but not extensively, on the problems with legal education – a much discussed subject these days in the wake of the crash of the legal job market. He says that, because of the inability to escape technology in their practice, law students should be required to take a course in accounting and statistics and at least one course, elsewhere in the university, of a purely scientific or technical character. And if room needs to be made in the curriculum for these courses, Posner offers this solution: cutting or shortening Constitutional law is a good place to start. This is just one of so many laugh out loud Posner-esque comments that Reflections offers.
I asked Judge Posner to address the criticism that law school does not adequately prepare students for practice while also recognizing that the economics of a legal education are not working (students graduating with sizable debt but no job to pay it off). Judge Posner: “The major economic changes would be reducing the size and compensation of faculty and greatly reducing the number of books in a law school’s library. The major curricular changes would be greater emphasis on clinical courses in areas such as procedure and evidence that relate to the trial process, and provision of ‘majors’ such as civil litigation, criminal litigation, bankruptcy, and other commercial fields, in which students could concentrate.”
6. One of the core components of Reflections, and it is discussed at length, is that judges are not well adapted by training or experience to handle the complex technological issues that now come before them. Posner summarized is like this: “We live ‘in a world of increasingly complex, fragmented, and ubiquitous information.’ Federal judges are on the whole not well adapted by training or experience to the technical age that we live in.” Posner offers solutions to the problem through the hiring of law clerks and judicial training. That there is a chapter called “What can be done, modestly?” tells you that Posner is realistic in the ability of the problem to be solved.
I offered a solution to Judge Posner but he was unconvinced. Given that, in some states, it is necessary to pass a test to be an interior designer, would he favor a mandatory test for new federal judges to establish that they possess a certain level of knowledge of the most important technical issues that they are likely to confront in cases? “No; that would just lead to cramming. I think lengthier judicial training, with or without testing (probably without) is a better approach.”
7. If you are reading Reflections on Judging to learn more about what makes Posner Posner, then his discussion of his decision making process -- and, happily, there is a lot of it – will not leave you disappointed. But it is not enough simply to understand Judge Posner’s decision making process. To fully get it you must also understand an alternative decision making process that he derides.
Judge Posner describes himself as a realist judge and not a formalist judge. A formalist judge believes that “all legal issues can be resolved by logic, text, or precedent, without a judge’s personality, values, ideological leanings, background and culture, or real-world experience playing any role.” Realism, as Posner notes, is harder to describe than formalism, because realism is everything ism, in legal thought and practice that is not formalism.
Posner describes a realist judge as one that “understands the limitations of formalist analysis, does not (a related point) have a ‘judicial philosophy’ that generates outcomes in particular cases, wants judicial decisions to ‘make sense’ in a way that could be explained convincingly to a layperson, and is a ‘loose constructionist,’ which means he believes that interpretation should be guided by a sense of the purpose of the text (contract, statute, regulation, constitutional provision) being interpreted, if the purpose is discernible, rather than by the literal meaning of the text if purpose and literal meaning are at odds with one another. The realist judge has a distaste for legal jargon and wants judicial opinions, as far as possible, to be readable by nonlawyers, wants to get as good a handle as possible on the likely consequences of a decision one way or the other, has an acute sense of the plasticity of American law, is acutely conscious too of the manifold weaknesses of the American judicial system and wants to do what he can to improve it. He does not draw a sharp line between law and policy, between judging and legislating, and between legal reasoning and common sense.”
One of Posner’s main messages is that judges, mistakenly, turn to techniques of formalism as a means of avoiding complexity or when they do not understand the activity from which a case before them has arisen. The moral of Reflections on Judging is that this will not work. “The path forward is the path of realism.”
Posner is the best known realist judge and Justice Scalia the best know formalist. They see the judicial decision making process as worlds apart and have a Coke and Pepsi relationship. A full discussion of this is way beyond what is possible here. The simplest way to describe this is Posner’s view that Scalia’s decision making process is needlessly complicated by so-called “canons of construction” (57 that he endorses and 13 that he rejects). These, Posner says, provide Scalia with “all the running room needed to generate whatever case outcome conforms to [his] strongly felt views on such matters as abortion, homosexuality, illegal immigration, states’ rights and the death penalty.”
Posner also observes of Scalia that he “makes judging too difficult by telling judges to master and apply a baffling and ultimately fruitless system for avoiding engagement with reality. He is a complexifier, though it is less likely that complexity guides his judicial votes (and those of others of his school of thought) than that it conceals the biases that actually generate those votes.”
I asked Judge Posner about his differences of opinion with Justice Scalia and suggested an idea:
Q: Your disagreements with Justice Scalia on realism versus formalism are widely known. This is addressed in the book. In addition, the debate has played out in the media and on law blogs. Would you consider a live debate, on a stage, with Justice Scalia over your disagreements? While neither would change the other’s mind, it would be very enlightening for the legal field and have the excitement of a Super Bowl atmosphere.
A: I’d be happy to debate Justice Scalia, but he would never agree, because he would regard it as lowering himself (a supreme court justice) to the level of a mere court of appeals judge (me).
Coverage Opinions is a bi-weekly (or more frequently) electronic newsletter reporting or providing commentary on just-issued decisions from courts nationally addressing insurance coverage disputes. Coverage Opinions focuses on decisions that concern numerous issues under commercial general liability and professional liability insurance policies. For more information visit www.coverageopinions.info.
The views expressed herein are solely those of the author and not necessarily those of his firm or its clients. The information contained herein shall not be considered legal advice. You are advised to consult with an attorney concerning how any of the issues addressed herein may apply to your own situation. Coverage Opinions is gluten free but may contain peanut products.
Randy J. Maniloff is an attorney in the Philadelphia office of White and Williams, LLP. He concentrates his practice in the representation of insurers in coverage disputes over primary and excess obligations under a host of policies. Randy is co-author of “General Liability Insurance Coverage - Key Issues In Every State” (Oxford University Press, 2nd Edition, 2012). For the past twelve years Randy has published a year-end article that addresses the ten most significant insurance coverage decisions of the year completed.
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