Reviewed by: James G. Apple, Editor-in-Chief, International
Judicial Monitor and President, International Judicial Academy
Judge Richard Posner of the United States Court of Appeals
for the Seventh Circuit has a significant judicial legacy other than deciding
cases and writing opinions. He has written more than 30 books (and many articles for
legal journals) over the past 40 years on a variety of subjects that include
sociological and political topics as well as law and judging. It would not be
an exaggeration to characterize Judge Posner as a polymath, so wide are his
areas of expertise. And while his books rarely reach the status of New York
Times best seller, they nevertheless are always well written and thought
provoking. His current effort, which is part autobiographical, is no exception;
in fact it may be one of the most useful books for judges, court officers and
government officials that he has written. And although Judge Posner writes from
the perspective of a federal appellate judge discussing issues that have arisen
in the federal courts, many of his insights and comments are valuable to all
judges, appellate and trial, federal and state, including judges from foreign
jurisdictions.
The title of this book may be misleading – one might assume
from Reflections on Judging that it is only a discursive account of his
judicial life looking back on a bench career that spans over 31 years. But it is
not. He is selective in the issues he addresses, and he addresses them in most
instances in well written, easily understandable prose.
In the beginning of the book, which is the autobiographical
section, Judge Posner estimates that he has heard more than 6,000 oral arguments
and written more than 2,800 published opinions. He writes:
I may be a good judge, a bad judge, or an
indifferent judge, but I am undeniably an experienced judge, though my
experience is limited to the federal judiciary.
And so his “reflections” are based on his long experience on
the bench. There is a definite focus in this writing, which might be termed
“serious problems that are facing the federal judiciary.” Certain themes stand
out, themes that are in the nature of, first, descriptions of serious problems
that have arisen in the courts over the past 20 years, and, next, suggestions
for reform that are applicable to not only the federal judiciary but also to
state judges and court systems in the United States and judges and courts in
general.
In the Introduction Judge Posner describes the book as one
that “mixes the academic with the personal; it is a study of the judicial
process mixed with personal recollections, references to a number of my own
judicial opinions, and recommendations to judges and judicial administrators.”
Judge Posner’s focused commentary concentrates on the following themes, which
correspond roughly to the chapter headings:
- Complexity,
which he divides into two major parts because of the context in which they
arise. One is external to the judiciary that presents issues for judges
because they occur in cases that judges decide. The other type is internal to
the judiciary, because it relates to the judicial process, judicial
organization and judicial management. These subjects are covered thoroughly in
the 50 pages of the third chapter titled “The Challenge of Complexity” and
issues relating to it.
- The
relationship and growing gap between the judiciary and academe. Judge Posner
taught in law school before his judicial career began and he has continued to
teach as an adjunct professor, so he can comment competently on this subject.
- The
evolution of the judiciary. Judge Posner devotes one short chapter to a
description of how the federal judiciary has changed over a period of 50
plus years, not just in terms of case filings, judicial case loads and the
increase in the complexity of cases, but also how these changes have affected
the quality of judicial work.
- Judicial management. Judge Posner was the
Chief Judge of the U.S. Seventh Circuit of Appeals for seven
years so is in a good position to comment on this
aspect of the judiciary that has drawn little attention and less commentary in law reviews, law journals and legal and judicial magazines.
- Interpretation
and judicial restraint. The judge confronts these controversial topics with
definite ideas about where the federal judiciary should be headed. He is strong
in his support for judicial realism and is definitely at odds with the
so-called originalism school of interpretation best personified by U.S. Supreme
Court Associate Justice Antonin Scalia, with whom he disagrees strongly.
- Judicial formalism and
judicial realism. The issues here are closely connected with the
interpretation approach of judges, but they arise and are discussed in
chapters dealing with other subjects. Judge Posner is a judicial realist and
explains fully why he subscribes to that school of thought.
- Judicial education. This issue
is closely related to almost all of the other themes of the book,
especially complexity.
|
|
There are also other minor themes that are addressed, such
as the evolution of the federal judiciary, records on appeal, expert witnesses
in trials, internet research, and opinion writing, but these topics have
relevance to and are discussed in the context of the main themes described
above.
Although in the wider world complexity is a subject that has
been investigated and discussed with growing frequency, it is not often a
subject of discussion in the legal community. Judge Posner is one of the few
judges, and possibly the only one, who has seriously addressed that issue and
its effects on the legal system, especially effects on court cases and judging.
That it is of importance to him is shown by the fact that he devotes one
50-page chapter to the subject, one of the longest chapters of the ten chapters
in the book.
Complexity is an important issue for all judges in the new
century. It not only now invades many court cases (medical negligence cases, antitrust cases, intellectual property cases, business and commercial cases, criminal cases - especially criminal sentencing matters - and technology cases) but it has become an increasingly important issue in the management of courts and judges. Judge Posner’s message, one of urgency, is
that judges are not now equipped to deal with these developments. He points out
that lawyers, almost by definition, are not skilled in assessing and resolving
complex issues and are not skilled managers. A great many lawyers, including those
who eventually end up on the bench, are refugees from science and technology
studies in college – many started with a scientific or technical career as a
goal and eventually dropped out and opted for law school (the writer of this
review included). This lack of technical and management skills is having and
will have an adverse effect on the quality of justice that comes out of the
courts.
What are the remedies for this state of affairs? In the
tenth and final chapter, Judge Posner brings his insights to bear on the issue
of resolving some of the pressing issues raised in his book. The solution is a
greatly expanded and strengthened effort in judicial education, from initial
education courses for new judges to continued legal education programs for experienced
judges. He comments about this need as it relates to judicial management
skills:
The limited character of judges’ initial
training contributes both to the passivity displayed by many judges and
their frequent lack of good management skills. Poor management
is a major factor in the frequent long delays between the
oral argument of an appeal and the issuance of the opinion
deciding the appeal, and at the district court level in long delays
in bringing litigation to conclusion.
The Federal Judicial Center (FJC) is the agency of the
judicial branch of the United States government charged with the responsibility
of educating judges. Judge Posner, after noting that the budget of the FJC has
experienced cuts in recent years, argues that the “Federal Judicial Center
should be given the resources it needs to enable it to do more than it can do at present to provide
management training to federal judges and to improve their understanding of the
technological and other complexities that bear on their work.”
Judge Posner doesn’t end his book with an appeal to more and
better judicial education - although that is clearly one of his objectives in
writing the book. He concludes by making a plea
for a return to judicial realism, “the path forward,” as the ultimate remedy
for a lot that is wrong with the federal courts, and with U.S. courts in
general. Judicial realism is to be preferred over the other approaches to
interpretation and application of law, such as originalism, textualism, and
other “isms” which have been inflicted on the legal community at large, and on
the judiciary specifically, by academic writers and even Supreme Court
justices. He describes what he means by judicial realism:
All that legal realism ought to mean – all that
it means to me – is making law serviceable by bringing it closer, in point
of intelligibility and practical utility, to the people it’s supposed to serve,
which is the population as a whole. It ought to be possible to decide most
cases in a way that can be explained in ordinary language and justified
as consistent with the expectations of normal people. This requires
judges to understand what is really going on in the cases they hear, which
is increasingly bound up with technology. In this endeavor they will be
hindered, not helped, by the canons of statutory construction, by
invisible and unwritten constitutions, by the Bluebook, by
ghostwriter law clerks, by legal jargon, by multifactor tests, by multiple
standards of appellate review, by prolixity, by quotation out of context.
So, in the final analysis, education is the key. The
way to judicial realism of the Posner type is for judges to be exposed to sound
and sufficient legal and judicial education programs so that the path forward
becomes clear. Perhaps the best way to begin such an effort is to require all
judges, as the initial part of their judicial training, to read Judge Posner’s
excellent book.
|
International
Judicial Monitor