Reading judicial opinions is part and parcel of many lawyers’ lives. They (judicial opinions) generally range from the competently written and polished to excruciatingly boring, but probably the reaching the best result, to the incompetently written and argued (though the latter are rare, thankfully, but many lawyers can point to one that they had “happen” to them).
Most judicial opinions are boring, Judge Posner points out, because judges (really, their law clerks) aren’t writing for an audience, but married to a formalistic, plodding, but ineluctably headed to the “correct” result style: i.e., a statement of the facts — usually with far too many acronyms and meaningless dates — followed by the lower court’s decision (or a procedural history if you’re at the district court level), then a he said/she said (plaintiff contends x, defendants contends y), then the “Standard of Review” and, finally, the “Analysis,” usually cumbersome and littered with citations that may (or may not) support the court’s desired result.
And judicial opinions — especially appellate court opinions — serve as an analytical jumping off point for Posner in his latest book Reflections on Judging, which should be required reading for every sitting federal court judge and all state appellate court judges. Formalism, or more accurately, a return to formalism, is how Posner characterizes the judiciary’s and academy’s response to the overwhelming technological progress and concomitant complexity litigation/modernity have wrought.
On the academic side, Posner points to the rise in the academy of the New Textualism and New Originalism, the latter being overly concerned with history, which, when done by lawyers and law professors is almost always tendentious — see Heller. Posner skewers Justice Scalia and Bryan Garner’s new(ish) book, Reading the Law, with verve, a rapier wit and accuracy. Scalia and Garner routinely make basic errors such as seemingly not even have read the cases they cite to, and overconfidence in that their method can actually allow judges to reach a “correct” result in difficult cases. On the liberal side of the fence, Posner delights in — and because Posner is such a good writer, it is delightful for the reader — in savaging Professor Amar’s The Unwritten Constitution. This section alone is worth the price of admission.
But the judiciary is Posner’s central concern. Formalism is not the path forward, realism is. That is, Posner calls himself a realist — he is — and has also called his judicial philosophy “pragmatism” — a concept I published a paper on (which Posner kindly cites in his Reflections). Pragmatism is practical, but not simplistic. Pragamatism is consequentialist in nature: what are the effects of the decision going to be in the real world. Pragmatism can also be described as “a disposition to ground policy judgments on facts and consequences rather than conceptualism and generalities.” That is, pragmatism is forward-looking and empiricist, it is hostile to legal formalism and its “ultimate criterion” is reasonableness. Pragmatism is empirical and not hide-bound to “canons of construction” or “multi-factor tests” that judges use to mask the prime movers behind a decision. A pragmatist judge has no problem going outside the record if the parties have failed to make certain facts clear (something I think judges should consistently do).
Towards the end of the book, Judge Posner writes, “[l]aw attracts some very bright people. But it is not profound.” We, especially the judiciary, would do well to remember this. The law is there to make our lives simpler. Practicing law is not an art. Posner, as he has throughout his career, does the legal profession a great service by unmasking the judicial mystique. He is truly a national treasure.