International Judicial Monitor
Published by the International Judicial Academy, Washington, D.C., with assistance from the
American Society of International Law

Spring 2016 Issue

In Review:
Books About International Law and About Courts and Judges


Divergent Paths: The Academy and the Judiciary
By: Richard A. Posner. Harvard University Press. 2016

Divergent Paths: The Academy and the Judiciary

Reviewed by: James G. Apple, Editor-in-Chief, International Judicial Monitor

In 1936 a prominent Yale law professor named Fred Rodell (author of a book about the Supreme Court of the United States titled Nine Men) wrote an article for the Virginia Law Review titled “Goodbye to Law Reviews” (37 Va.L.Rev. 1785). That was a time when appreciation for law reviews as training grounds for law students and as readily available outlets the writings of law professors (“publish or perish”) had reached a zenith. Professor Rodell’s article achieved a certain amount of fame. because of its unconventional  views about these student publications. Significantly it was included in a compendium of the most important legal articles of the 20th Century. It was certainly widely read, not only because of its views about legal writing, but also because it was very, very funny.

Later, in 1962, the Virginia Law Review published a sequel to it, appropriately titled “Goodbye to Law Reviews - Revisited” (48 Va.L.Rev. 279 which did not attain the notoriety of the original article. However it was also very funny, and revealed that Professor Rodell’s disdain for legal writing had not diminished in the 26 years between publication of the two articles.

In both articles, Professor Rodell takes up two issues which are central to his complaint. “There are two things wrong with almost all legal writing,” he wrote. “One is its style. The other is its content. That, I think, about covers the ground.”  One of the characteristics of law review articles is the almost fanatical use of footnotes in law review articles (and also in many other types of legal writing). The pomposity of the legal articles is another one of his targets. He notes for instance that the Blue Book: A Uniform System of Citation used universally by law professors and law students for the  manner of citation of references in legal articles, especially law review articles, developed in the early 1920s by professors at Yale and Harvard Law School, has now expanded to over 500 pages. (When I was in law school and an editor of the Virginia Law Review in 1961-62 the Blue Book was probably less than 150 pages.)

Judge Richard Posner, in his new book, has taken up the same cudgel with which to pound law reviews as well as other aspects of writing and judging. However his commentary is more penetrating; legal writing is but one of many subjects which Judge Posner discusses in the new work. In fact the title of the book is somewhat misleading, because most of the book does not deal with the relationship between courts and the academy, or between judges and law professors. It is mainly of critique of the federal courts and federal judges. Most of the commentary about them is negative. For instance in one place in the Introduction, he comments: “As I argue in subsequent chapters, the problems of the judiciary are administrative,  operational, structural, attitudinal and cultural …”. In fact one might conclude from the overwhelming negativity that is displayed that Judge Posner has lost all objectivity about his subjects. The federal courts could not be that bad.

In his defense and to answer such criticism, it can be said that on reflection a serious observer of the U.S. federal legal system would have to conclude that in a great many instances Judge Posner is correct in his analysis and critique, and that the federal courts and federal judges would be better off if his observations were thoughtfully considered and many of his recommendations were adopted.

Judge Posner has divided his book into two major parts, and three main subparts for each of the two major divisions. The first division is titled “Problems of the Modern Judiciary” and has divisions discussing Structural Deficiencies, Process Deficiencies, and Management Deficiencies. The second subdivision on processing deficiencies is the most penetrating; it takes up 147 pages of the 406 page book.

The second major division, titled “The Academy to the Rescue” is broken up into discussions of The Contribution of Scholarship, The Law School Curriculum, and Continuing Judicial Education. There is also a Conclusion and Epilogue.

To give the reader of this review a sense of the depth of the commentary in these different parts, consider that the Process Deficiencies section has 17


subsections, covering legal formalism, rear-view mirror syndrome, naivete about interpretation of statutes and precedents, multifactor tests and the excesses of legal doctrine, the fetishism of words, ignorance or indifference to context, passivity, conservatism, complacency and over confidence, decision by formula, informationally disabled judges, lack of curiosity, lack of self knowledge, a loose attitude toward truth, the noble lie, the limits of a generalist judiciary, and an insufficient judiciary.

The Management Deficiencies catalogue of issues includes deficient management of judicial staff, lack of collegiality, deficient judicial macro-management, managing the federal judicial system as a whole, work ethics, foot dragging, overstaying their welcome, excessive travel judges, and the issue of whether federal judges are overworked.

Judge Posner’s main suggestion for the solutions to these many problems is to turn to the academy. It is in the first subsection of “The Academy to the Rescue” that Judge Posner takes up the matter of legal scholarship and its deficiencies. Judge Posner suggests that law professors may be the answer to many of the issues that he has discussed, yet he recognizes that such a proposal has very little chance of ever being adopted, largely caused by the large gap that exists between law professors’ approaches to the law and that of judges.

Judge Posner demonstrates earlier in his book, in the Introduction, the gap between courts and judges and law professors. He quotes from an article written by a Harvard Law School professor and published in a leading law review, as recent as 2014. The subject was statutory interpretation. The title of the article is enough to result in immediate rejection by a potential reader, especially a judge: “Three Symmetries between Textualist and Purposivist Theories of Statutory Interpretation – and the Irreducible of Values and Judgment within Both.” And here is a quote from the text, also presented in Judge Posner’s book:

The experience of partly value-based interpretive dissonance often supplies the trigger for appeals to theories of statutory interpretation, including both textualist and purposivist theories. And within both textualist and purposivist theories. And within both textualist and purposivist theories, the ultimate outcome will frequently depend on the breadth or narrowness with which the relevant context  for a statute’s interpretation is specified. To put the point slightly more strongly, the specification of an interpretative context-which is irreducibly value driven at least in part-may frequently matter as much in practice, as the seemingly more consequential decision whether to adopt a textualist or purposivist theory in the first place. Debates about theories of statutory decision whether to adopt a textualist or a purposivisit theory in the first place. Debates about theories of statutory interpretation will remain misleadingly incomplete until they reckon adequately with this insight.

This kind of writing, which is all too characteristic of law review and other types of legal writing, also raises the question: why would anyone seriously considering the various issues raised in the book about judicial reform be interested in having a law school professor involved in proposing meaningful solutions.  It seems to me that selected judges would be for more capable of considering the issues and offering insightful solutions or perspectives on them, presented in far more understandable language. Probably the only area where law professors might provide valuable assistance would be in reform of the law school curriculum, which in turn would hopefully result in changes the way judges and court administrators go about their work.

Judge Posner follows his own advice in the language used in the book – it is written in style that is easy to understand by non-academics. He has identified many areas of judicial and court reform in a systematic manner, and deserves a hearing. That hearing can best come about by court personnel – judges and court administrators, taking the time to sit down and read his book.

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© 2016 – The International Judicial Academy
with assistance from the American Society of International Law.

Editor: James G. Apple.
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