Friday, September 30, 2016

Parsing Posner's Peevishness

by Michael Dorf

The Autumn 2016 issue of the Journal of Legal Education includes a book review by me of Judge Richard Posner's book Divergent Paths: The Academy and the Judiciary, along with a reply by Posner. Overall, my review of Posner's book is mixed. Posner's reply begins with a gracious opening paragraph. It then argues that my review is unfair and wrong.

My review praises Posner as one of the greatest judges in U.S. history. I say that the book is "enormously entertaining and contains numerous nuggets of sound practical wisdom." I also praise Posner's basic decency as exhibited by his recommendations for the reform of supervised release of persons who have served their prison terms and various other positions he takes. I then discuss what I regard as the book's problems, including its cranky tone, its unfairness to particular scholars and to an entire branch of the legal academy (legal writing instructors), and the tension between Posner's chief proposal for the reform of legal scholarship and his chief proposal for the reform of law teaching.

My review is similar in tone and bottom line to the review that Professor Paul Horwitz wrote of the same book. I agree with Horwitz that Divergent Paths reads like "several books not one, sometimes conflicting in diagnosis and prescription, and too often wandering into fun but unfocused irrelevancies."

Despite receiving two similarly critical reviews from readers who greatly admire Posner and much of his prior work, Posner thinks that I (and presumably Horwitz) have been unfair. Here I'll respond to eight of his specific complaints about my review before adding a concluding observation.

1) Posner says that my review isn't really a book review because it doesn't "give the reader of the review an idea of the scope and contents of the book," failing to mention that his Appendix D "lists 75 problems of the federal judiciary and 48 possible academic solutions, all touched on in the book." He also complains that I mostly focus on Posner's diagnosis of and prescription for the academy, while I "have very little to say about the judiciary." Yet all of Part I of my review is about the judiciary, though obviously not about everything Posner's book says about the judiciary. Posner is right that I don't address the vast majority of the problems he identifies and his proposed solutions, but I do try to characterize the book and then focus on Posner's core diagnosis and prescriptions. Here's the characterization from my review:
Posner thinks that too many judges either believe or pretend to believe in formalism, and that they passively rely on the adversary system to provide information it does not reliably supply. He also thinks that the courts are managed poorly. Then Posner suggests ways in which legal scholarship and education could be reformed to help address these problems: more legal scholars should study how courts and judges actually conduct their business, while collaborating on research projects with judges; legal education should give students a clear-eyed view of how law is made and applied, and it should be more practical. That’s merely a summary of a summary. Posner himself summarizes his diagnosis and prescription in a bullet-point list that covers seven pages.
Perhaps Posner thinks I've inaccurately summarized the book, but I didn't fail to summarize the book, as his reply contends. Authors of book reviews often use the vehicle as a means of discussing their own ideas, with the book itself receiving only glancing attention. My review of Posner's book, by contrast, focuses entirely on the book. It is much more of a review qua review than many of the essays posing as reviews one typically reads in, say, The New York Review of Books. For the author of a great many books, Posner seems surprisingly unfamiliar with the book review genre.

2) Posner chides me for failing to defend a number of works that he criticizes in Divergent Paths, but in so doing he misapprehends what I said in my review. My review observed that Posner's targets were odd because unrepresentative in various ways. For example, he used Professor Richard Fallon as a "whipping boy" (Posner's phrase) to illustrate the supposed uselessness of legal scholarship. In his reply, Posner insists that the passage he quoted from one recent Fallon article really is too difficult to follow to be very helpful to most judges but that he generally values Fallon's work. I'm glad that Posner has issued this clarification, but it vindicates my review: If Fallon generally produces high-quality work that judges (and others) value--as I agree Fallon does--then Posner should have chosen a different whipping boy or, better yet, not attacked a whipping boy at all.

Posner also believes that I should have defended a book by Professor Akhil Amar and another book by Professor Laurence Tribe against criticisms that Posner makes of them in one of his other books. To state the obvious, it is customary in book reviews to focus attention on the book under review, not the author's other works. Even so, my review cites eight of Posner's other books, as well as various of his opinions and articles.

3) Much of Posner's reply is misdirected. As just noted, Posner dares me to defend two books, one by Tribe and another by Amar, that Posner thinks are "dreadful." But my review doesn't say that Posner was wrong to dislike these books (just as I'm not now saying that he was right to dislike them). What I say is that Posner made an odd choice in singling out Tribe and Amar in order to criticize constitutional theory as useless to judges, because neither Tribe nor Amar is chiefly a theorist. As I say in my review, Tribe "built his reputation as a first-class constitutional scholar by writing a treatise, the kind of work that Posner describes as most valued by judges," whereas judges who "call themselves originalists" would likely be "intensely interested in Amar’s (sometimes surprising) historical discoveries." For Posner to demonstrate the uselessness of constitutional theory to judges, he would have done better to focus on the work of a constitutional theorist, like Professor Jack Balkin, Professor David Strauss, or the late Professor Ronald Dworkin. Maybe Posner would have been able to make his case; maybe not. But at least the target would have made more sense.

More broadly, Posner's criticism of selected works by Fallon, Amar, and Tribe exposes the weakness of his methodology. As I note in my review, there is an enormous volume of legal scholarship. A great deal of it is not very good. Much of it is not useful (and not intended to be useful) to judges. So what? Posner's claim that the legal academy does not produce sufficient scholarship of use to judges cannot be proven by pointing to the existence of what he deems unhelpful or bad legal scholarship, especially not when the authors of the particular works Posner criticizes have themselves produced other, high-quality work that is useful to judges. As I say in my review, "it is possible for there to be far too much of just about any imaginable kind of legal scholarship without any complementary shortage of any other kind of legal scholarship. Despite his admiration for quantitative empirical work, Posner makes no effort to quantify the volume of existing legal scholarship that is valuable to the judiciary." Posner does not answer or even acknowledge this charge in his reply.

4) In my review I say that Posner indulges his pet peeves, such as his hatred of the Bluebook. Posner responds by challenging me to defend the Bluebook. Yet this is as much of a non sequitur as his challenge that I defend the particular works of Fallon, Amar, and Tribe that Posner dislikes. What makes the Bluebook a pet peeve for Posner is not that he is necessarily wrong to criticize it. It's a pet peeve because Posner's pique is out of proportion. In a book that ostensibly addresses serious issues, Posner singles out the Bluebook for criticism 35 times on 17 different pages (as I calculated by searching for "Bluebook" in the Kindle version of Divergent Paths).

5) Posner seems incapable of confessing error, even when basic decency and intellectual honesty require that he do so. He asserts on page 336 of Divergent Paths that in "the typical first-year required writing course" students "are taught that legal argument is a specialized discourse, that its jargon must be embraced . . . ." My review notes that this is a calumnious charge. In fact, every reputable legal writing instructor in the country teaches students to avoid jargon. Posner's reply does not acknowledge that his book made the false statement about what happens in legal writing courses. Instead, he makes a semantic point about my review as though it were a substantive response. He says "it would be more accurate to say that some of the instructors try to discourage use of jargon, but judging from the number of jargon-ridden student law-review comments and judicial opinions the instructors are rarely successful." (Emphasis in original). Posner's new accusation that legal writing instructors fail in their goal of teaching students to avoid jargon does not come with an admission of--much less an apology for--the fact that his book made the different and completely false accusation that legal writing instructors affirmatively instruct students to use jargon. Indeed, by saying that only "some" legal instructors even try to teach students to avoid jargon, Posner implies that others don't, thus repeating his false and baseless accusation against a great many legal writing instructors.

6) In my review, I point out that Posner's proposal that law schools should teach civil procedure, evidence, and some other courses as simulation or clinical courses is inconsistent with his complaint that law faculties are too large, because skills-based courses are more labor-intensive, requiring more, not fewer faculty. In his reply, Posner says I am "wrong, because such teaching can be done better by adjuncts—practicing lawyers or judges ([Posner] for example)—who receive slight and often no compensation, than by law professors who have no practical experience."

That might be a good answer, but only if one were to disregard what Posner actually wrote in his book, which is that "clinical" teaching (a term he somewhat inaccurately uses to include teaching simulation courses) should be done by tenured faculty. At page 325 of Divergent Paths, he wrote:  “A further problem is that many, perhaps most, clinical law professors do not receive tenure, are not expected to publish, and do not do much teaching in the conventional sense." If Posner-in-the-book is right that this is a problem, then the solution proposed by Posner-in-the-reply of hiring adjuncts to teach clinical and simulation courses will exacerbate the problem, not solve it.

Maybe Posner has changed his mind since he wrote the book and now opposes tenure for clinical teachers, preferring that adjuncts teach the basic courses as skills courses. That's a proposal worth considering carefully. But Posner gives no indication that he even realizes that what he writes in his reply contradicts what he wrote in the book.

7) Posner thinks my views on legal realism are incoherent because I agree with Professor Brian Leiter's statement that "we are all legal realists now" even as I regard Posner's crusade against the last vestiges of legal formalism as quixotic. There is no incoherence here. My review contends that moderate legal realism has already prevailed. I explain that one can be a legal realist to the degree that one recognizes that formal legal materials often don't decide concrete cases without being an extreme legal realist in the sense that Posner is: believing that formal legal materials almost never decide concrete cases. My review agrees with Leiter's statement about the triumph of moderate legal realism; it argues that Posner's crusade in favor of extreme legal realism will likely fail. These propositions cohere quite well, contrary to Posner’s contention to the contrary.

8) Posner also accuses me of self-contradiction for saying in my review that "Posner does have some good ideas about legal education, but even these seem half-baked." He writes in his reply that this "unintentionally amusing statement" is a "self-contradiction . . . .  Half-baked ideas are not good ideas." Apparently, Posner thinks that the idiom "half-baked idea" means only a "bad idea" but cannot properly be used, as I used it, to mean an idea that is sound in principle but poorly executed in practice.

If Posner is going to make pedantic complaints of this sort, he ought to at least be correct in his pedantry. He is not. If you look up "half-baked" in a dictionary (such as Webster's), you find that the very first listing under the full definition of "half-baked" is "poorly developed or carried out," which is exactly how I used the term.

To be sure, if Posner or someone else had written an objection to my use of "half-baked" in the margin as a comment on a draft of my review that I had circulated for feedback, I would have considered editing it. In fact, because I saw Posner's reply before my review went to press, I had time to consider his criticism as though it were intended as a constructive editorial suggestion rather than simply as a snide remark. I decided to reject the (imputed) suggestion, because I thought that a reader not simply looking for places to score points would know exactly what I meant.

At the risk of further belaboring a very minor point, let me illustrate. Here's the first example that my review gives of Posner having a good idea that is nonetheless half-baked:
[Posner] persuasively argues that a good lawyer should be literate in both the humanities and the sciences. Thus, he proposes that law students who arrive with a humanities background take undergraduate courses in technical subjects, while those who arrive with a technical background be required to take humanities courses in law school. The goal is sensible, but the means are odd. Law schools are already under pressure to add more skills courses, leaving little room to require (admittedly vital) courses outside the law entirely. 
In this example the goal--broadly-educated lawyers--is good, but the means Posner chooses--requiring science and humanities courses in law school--are impractical and thus likely to be ineffective. It's like an apple pie based on an excellent recipe that is taken out of the oven too soon. It's a good apple pie except for the fact that it's only half baked. If Posner wants to insist that the term "half-baked idea" cannot refer to an idea that is good in principle but bad in execution, I'm not inclined to fight him further on the point. But the objection, like too much of the book, is petty.

* * *

Should Posner choose to reply to this blog post, I will let that reply stand without further comment. It's his book that's under review, after all, and so the stakes are higher for him than for me. In any event, I want to make clear that I am not offended by Posner's reply to my review, just as I am confident that he does not take my criticisms personally. As I wrote above and in my review, I continue to regard Posner as a great judge and an important public intellectual. However, Divergent Paths and his reply to my review are not up to the high standard he has set for himself.

Worse, there is something nasty in some of Posner's recent writing that is uncharacteristic of his prior work and his mild manner in person. He is not exactly a bully. To his credit, he punches up at Supreme Court justices and out at prominent academics, not down. Still, Posner sometimes exhibits one of the characteristics of a bully: He can dish it out but he can't take it. As I explain in my review, his book does not merely disagree with positions taken by others; it is filled with mockery. Even in his reply, Posner includes a gratuitous insult of Justice Elena Kagan, questioning the sincerity of her personal affection for Justice Scalia. Yet Posner himself now seems thin-skinned, unable to acknowledge that his latest book might not rank among his best work and thus lashing out (at me and others) in ways that are unbecoming.

Posner wasn't always like this. In 2009, in a terrific essay in The New Republic, Posner both admitted to his prior ignorance of Keynesianism and acknowledged that his own foundational work in law and economics was incomplete. Much of Posner's charm as a judge and a public intellectual has been rooted in his ideological unpredictability--sometimes conservative, sometimes liberal, and always skeptical of pieties. In the past, that skepticism was sometimes expressed bluntly, but lately Posner has come to treat bluntness as an end in itself. It is one thing not to pull punches. It is quite another to throw them wildly, simply for the sake of provocation.

I don't know what to make of Posner's recent change. Perhaps after three and a half decades on the bench he feels more liberated than ever to speak his mind. Or perhaps the coarsening of the culture more generally has rubbed off on Posner. Whatever the cause, for those of us who have so valued Posner's work over the years, it would be a shame if his new excesses were to be seen as diminishing his extraordinary body of work as a scholar, a judge, and a public intellectual.


P Cass said...

On whether Posner is a bully who punches down, I'd encourage you to listen to some of his oral arguments over the past few years - I don't know what he was like before, but now he treats lawyers with open contempt.

Joe said...

Prof. Kerr tweeted recently (might have been partially sarcastic but tends to be "sarcastic on the square" as Al Franken might say) that Posner also is mostly using his court opinions to make personal opinions about various issues.

I really don't know how accurate that is, but as with this issue (e.g., the idea he admitted he didn't know something was a bit surprising to me given his past habits of opining about everything under the sun), might be a fine line at times.

Asher Steinberg said...

I think a charitable hypothesis, although it may not sound charitable, is that Posner has become embittered by the triumph of Scalian originalism and textualism vis-a-vis the waning influence of his own thought. I don't say this to be mean; I find it an unfortunate development myself. Alternatively, many people, including some judges, simply become more cantankerous as they get older.

Shag from Brookline said...

Asher's closing sentence could apply to Justice Scalia. At age 86, I get cranky with blog trolls.