The Roads Not Taken


Review of Divergent Paths: The Academy and the Judiciary, by Richard A. Posner

Cambridge: Harvard University Press, 2015

Richard Posner has been by far my favorite legal writer since I read his Overcoming Law as a student. Confident, candid, acidic, impatient with the pieties that abound in American law, he exemplifies the value of “thinking things, not words,” as his own model, Oliver Wendell Holmes, Jr., once wrote. He shows us how useful—and fun—it can be to treat the law with a mixture of social sciences and humanities, shot through with common sense and plain talk.

Every critic of Posner should read his memorial tribute in the Harvard Law Review to his former boss, Justice William Brennan, Jr. Unlike most such tributes, it was free of sentimentality; it mixed praise and criticism, offering “warm affection [ ] seasoned with an effort at cool evaluation.” Appropriately enough for the work of a judge and scholar, it was a judgment, not a eulogy. Too many former law clerks in the academy retain an adolescent love of their judges, and that immaturity sometimes affects their other work. Posner’s tribute was mature and independent in its evaluation. The lesson here is that Posner’s greatest fans, if they take him as a model, should be his most engaged critics.

Posner’s latest book, Divergent Paths: The Academy and the Judiciary, asserts that “the [federal] judiciary needs help.” It claims that the legal academy is best positioned to provide it but has failed in that task. He anticipates that neither audience will take warmly to his criticisms. His fear—or hope—is overstated. Many judges are too self-confident to bother reading a book like this, let alone taking it to heart. Many law professors are buried too deep in their individual silos to take notice. To judge from what I see at the annual conference of the Association of American Law Schools—it’s a diagnosis of sorts to see so many members of an academic discipline attending this conference for the sole purpose of subsidized dining with friends—a substantial number are indifferent not only to talk of law school reform, but to talk on almost any subject. They are teachers, not academics. The minority of law professors who still follow the debate on what to do about the law schools may take sides on his book, but at least they will take an interest in it.

In Divergent Paths, they will find much that repays their time, but I’m not sure they will find a rewarding book as such. They will find “too much”—a “gallimaufry,” as he says (wonderfully) of a quote by Laurence Tribe—and also not enough: several books not one, sometimes conflicting in diagnosis and prescription, and too often wandering into fun but unfocused irrelevancies.

Posner presents his main points with admirable clarity. The federal judiciary suffers from many flaws, not least “a certain staleness in the current judicial culture.” Some flaws are structural; others involve poor management of the judiciary as a whole and of individual courts and judges; a third set concerns “deficiencies in how federal judges decide cases and justify their decisions in judicial opinions,” including a mechanical formalism and an unwillingness to confront openly the task of solving complex problems. Some of those flaws are fixable. The legal academy could do a lot to help. But it hasn’t, and won’t, unless it fixes some flaws of its own. Its central shortcomings are its increasingly academic nature and its lack of interest in understanding or communicating with judges. “There really is a gulf between these two branches of the legal profession, and the gulf has been growing.” A “focus on practical instruction” in legal education would “create a greater faculty interest in judges,” especially those beyond the Supreme Court, and narrow the gap.

Neither the book’s diagnoses nor its prescriptions are new or shocking. A similar debate has been ongoing since Judge Harry Edwards’s 1992 article “The Growing Disjunction Between Legal Education and the Legal Profession,” and the debate was old even then. Posner’s aim is to advance the discussion, not to claim credit for starting it.

As with most of Posner’s books, reducing Divergent Paths to a dry précis gives no sense of the genuine intellectual treasures to be found in it. Its pleasures lie in its detours and divagations as much as in the main trail. “Having flailed at the American Law Institute for a few pages,” he writes at one point, “let me get back on track.” Throughout the book he flails away: at individual judges, articles, and ideas, at judicial piety and academic abstruseness, and at many of his other usual foils. He usually hits his target.

Sometimes—more often than usual for Posner—this becomes repetitive; for example, a 75-word passage appears, word for word, at pages 225-26 and 271. Frequently, he descends from acidity to crankiness. The ridiculous pseudo-scientific detail of the Bluebook, the law review citation manual, is emblematic for him of problems with American law. It responds to “anxiety . . . that law really is not a rigorous field (which is true)” by insisting on “faux rigor, illustrated by obsession with citation format.” All true, every time he has written about it; but he has written about it plenty, and the additional seven references here are downright obsessive. He writes interestingly about his practice of insisting that his clerks call him by his first name instead of the usual chambers honorific “Judge.” Well and good, but a subsequent two-page discussion of the same point is too much. Don’t even get him started on the term “chambers” itself, or the spittoons in the Supreme Court.

These examples are all fair; the book needed more ruthless editing and greater self-restraint. That extends to his epilogue, added at the last minute to throw in some harsh criticisms of recent Supreme Court opinions. Posner says he “thought it likely that some of those late-decided cases would cast light on issues discussed in this book.” The discussion is more distracting than enlightening—one more punch to throw before last call. It should have been cut.

Many other passages, however, retain the trademark Posnerian capacity to cut to the quick and separate sense from nonsense. A good Posnerian digression is worth many a volume by other writers. His decision to itemize in an appendix both his criticisms of the federal judiciary and his prescriptions for law schools is commendable and, given the usual normative and reformist tendencies of legal academic writing, refreshing. Would that more legal writers did it. Between a decent abstract and a compact appendix listing an article or book’s suggested reforms, we could save a lot of time.

The heart of the book is its pairing of flaws in the federal judiciary and ways the legal academy could address them. Plenty of law professors today are eager for reform recommendations. They should be. Even if the legal economy recovers fully, many reasons for reform will persist. Among other things, law schools make questionable choices in faculty hiring and curriculum, and there is a disjunction between what schools teach and how they teach it, and the practical needs of students, the legal profession, and others.

But even those eager to praise any suggested reform of legal education should take a careful look at Posner’s recommendations. The problem is not their cost. Requiring law professors (like me) to retool or move on is hardly a good reason to resist reform recommendations—if they’re good ones. But the consistency, coherence, and effectiveness of Posner’s proposals are questionable.

There is a strong tension between Posner’s complaints about law schools and his prescriptions for reform. Law professors used to “write illuminatingly about legal doctrine” in articles and treatises. This focus was natural: “Most law professors used to identify with the legal profession rather than with the academy and believed not without reason that lawyers and judges were a substantial part of their audience.” Now, law professors write for each other. The theoretical, jargon-ridden nature of their work signifies their identification with the academy and their estrangement from judges and lawyers (and their own students). His main worry is that an increasingly “Ph.D-ified” law professoriate is “providing less information and fewer insights helpful to judges.”

One might think, then, that Posner’s prescription would be: “Fewer doctorates, more doctrine.” Hire talented young lawyers to teach, and encourage them to do the doctrinal work at which they excel and which judges can understand and use. They won’t need much encouragement, given their particular (and limited) skills and their identification with the profession.

But it isn’t, or not quite. Posner urges that “the judiciary as an institution (as distinguished from its legal-doctrinal output) should be receiving a good deal more attention from the academy than it is.” Judges themselves—their psychology, their priors and incentives, their management techniques—are the rats that must be made to run the legal academic maze. The tools for that sort of study are organizational and psychological: statistics, management, organizational and institutional scholarship, behavioral economics and psychology, and so on. Anyway, a good deal of legal doctrine is bunk, an obscuring veil of legalism thrown over the real work of problem-solving. Judges are in thrall to formalism, over-reliant on precedent, entranced by the past, timid around complex facts; they’re unwilling to admit that their job in hard cases is to look forward, to “complete” statutes and search beyond the record so they can offer pragmatic solutions to difficult social problems. Thus the first item on Posner’s list of recommendations: “Redirect focus of academic scholarship from legal doctrines and particular decisions to systemic and institutional issues.” So the prescription is actually “More doctorates (but aiming their studies at the judiciary), and (even) less doctrine.”

What good will this do? Empirical study of the judicial process and the management of the federal courts would surely yield some benefits. But Posner argues throughout the book that judges can’t understand or won’t listen to this sort of thing. They might heed doctrinal criticisms, if they come from plain-spoken legal scholars who identify more as lawyers than academics. But, he insists, judges are unlikely to understand or care about a statistical study, or an experiment on judicial hunches garlanded with cites to the behavioral literature, or management experts telling them how to run their courts. They wouldn’t necessarily do anything about it even if they did listen. The usual problem of horses and water would apply.

The references to rats and horses are apt here. I will add a third animal metaphor. In his book How Judges Think, Posner urged legal and other scholars not to accept judges’ descriptions of how they decide cases uncritically, but to bring an external and interdisciplinary perspective to bear. He wrote pithily, “Biographies are more reliable than autobiographies, and cats are not consulted on the principles of feline psychology.” Going an absurd step further, Divergent Paths aims to turn the entire legal academy into a center for the study of feline psychology. Since he wants law professors not only to study their subjects but to help them, by such tasks as “guid[ing] judges to reliable websites and away from unreliable ones,” he would also turn us into feline therapists and feline concierges. While he’s at it, since he wants judges, unlike cats, to listen to the people studying them, he wants us all to talk to the animals as well, like Dr. Doolittle. There is no reason to think judges would take any more kindly to our observations than cats would, or that the skills necessary for external study of the judiciary would make us better judicial therapists and servants, and vice versa.

In the book’s last three pages (excepting the unnecessary epilogue), Posner, perhaps recognizing this disjunction or the low probability of his prescriptions coming to pass, suddenly changes tacks, although it’s unclear how much of this is endorsement and how much description. Various forces are pushing law schools in a more practical direction, he writes. He worries that “the focus of practical instruction in law school is bound to remain not on judicial behavior but on understanding the tasks that junior associates in law firms are asked to do.” (I consider that a plus, on the whole.) But on balance, he approves: “The change in legal education that I’ve been describing would, by tilting the composition of law school faculties more toward the practical, create a greater faculty interest in judges. And that would be a step forward.”

Judges are not the whole of the law or the legal profession, and Posner never really justifies directing academic resources at them instead of government lawyers, legislators and their staff, partners, corporate counsel, HR or regulatory compliance departments, or other non-judicial legal actors. But put that aside. If this is where he ends up, it is in tension with most of his recommendations—which themselves, I have suggested, are in tension with his diagnoses and with each other. The whole book becomes a sort of detour.

There are two more important flaws with the book, both tied together by a certain self-centeredness and the usual human tendency, widely shared by legal academics, to look for one’s keys under the nearest lamppost. The book’s plea for future study of the judiciary is undercut by the certitude, specificity, and oddness of his prescriptions. Posner already seems certain not only of the flaws in the judiciary and legal academy but of their remedies, and this affects his recommendations in bizarre ways. Duncan Kennedy famously wrote that legal education is a machine for the reproduction of hierarchy. Divergent Paths wants to turn law schools into a device for the large-scale industrial cloning of Richard Posner himself.

Posner disdains legal formalism, so he wants law schools not just to warn law students about its shortcomings—most law teachers already do that, although Posner is right that formalism is the “dominant law student subculture”—but to teach outright hostility to formalism. He loathes the Bluebook, so he would “[f]orbid student use of and references to citation-format manuals.” Having decided that statutory interpretation is an intuitive activity not much improved by formal and specialized study, he would dispense with a course on the subject altogether. If it is taught, he demands that professors skip the interpretive canons, which he abhors, lest students actually use them in practice. He dislikes limits on his discretion and likes factual research outside the record, so he criticizes legal academics for their tendency to propose the first, and slams an article questioning his use, in a couple of opinions, of photographs of his law clerks dressed up in protective gear. The individual criticisms of the article may be sound, but his conclusion—that the author “misperceives what judges need in the way of academic analysis,” which turns out to be more articles telling judges to be like Posner, to delete their ibids and unleash their ids—is ridiculous. 

Posner’s account of teaching judicial opinion writing provides a striking example of his effort to conscript law students into what we might call, keeping in mind his slight resemblance to Emperor Palpatine, the Posnerian Clone Wars. He found, on teaching this course, that “the students’ conception of a good opinion differed strikingly from my own . . . . I recall a student describing an opinion that I admired as ‘brazen.’ I was appalled.” His remedy was to retool the course to eliminate opportunities for students to form or voice such opinions. Alongside some useful targeted exercises, such as rewriting a published opinion with the aim of cutting it in half, he “asked them to read some old opinions that I admire, . . . and to tell the class and me which they liked best and why.” Like any skilled cross-examiner—or indoctrinator—he simply stopped asking questions to which he might get the “wrong” answer.

I agree with most of Posner’s diagnoses and many of his prescriptions; I admire his work as a judge and a scholar; I wish more judges, lawyers, and law professors were like Posner. But all of them? By the end of the book, one can’t help recall a scene in the movie Being John Malkovich, depicting a world with nothing but Malkoviches. Even a world filled with first-rate Posners would be an unsteady place; one filled with inevitably less capable people, taught nothing but how to emulate him, would be calamitous. Whatever legal academics’ job is, it can’t be that.

Finally, Posner’s exclusive focus on the federal appellate courts and the elite law schools is odd. It makes sense to write what you know, but this is a sweeping set of prescriptions for so narrow a scope of study. It leaves out other branches of the legal profession and of government, most of the law schools in the country, and all of the state courts. Narrowing in at the outset leaves him, and us, unable to evaluate whether other legal institutions are in more urgent need of help.

It also affects and distorts his prescriptions. Despite the perverse tendency of the competitive job market in law teaching to create a whole nation of law faculty who mimic their mentors at the elite schools, there has also been a recent increase in differentiation and specialization among law schools, as they are forced to pay more attention to local employment markets. There could, and probably should, be even more of this. Posner notes that faculty at non-elite schools are still likelier to produce doctrinal work, although the snobbery of federal judges (or their clerks) may lead them to neglect it.

Why not build on this? Instead of a prescription that all law schools become judicial study centers, based only on his knowledge of a few elite schools, why not allocate the work more efficiently? Perhaps he should encourage more tiering of law schools, not just as a matter of rankings but in terms of the role and strengths of different kinds of law schools. It’s also surprising that the book doesn’t consider the possibility of separating legal academic study from legal professional training, with fewer, less highly compensated, and more academic legal scholars teaching in departments of law, and more practical, doctrine- and instruction-oriented academic lawyers working in law schools.

In focusing on the shortcomings of individual elite law professors while insisting that the whole legal academy serve as glorified valets to the federal courts, he ignores another possibility. Two features, above all else, distinguish elite law schools from lower-ranked schools: money and resources. What separates Harvard, Yale, or Stanford from most law schools is not the presence of airy theorizing or Supreme Court clerks, both of which can be found elsewhere. It’s that these schools have accreted a large number of generously funded centers and institutions, staffed with affiliates, fellows, and administrators, a number of whom have significant expertise in useful disciplines. Individual tenure-track faculty members at the elite law school faculties are now just the visible tip of a much larger corporate enterprise.

These varied centers now mostly serve as a research and advocacy arm of legal liberalism. They do some impressive work, no doubt. But it’s not unique work; and, varied and piecemeal as they are in their activities, they don’t achieve half as much as they might if they were properly coordinated. With their resources and ability to hire dedicated and qualified staff, and with more forethought and direction, the elite law schools could do a lot to study the kinds of questions Posner thinks are central to the improvement of the federal judiciary (or other branches of the profession). They would certainly be better qualified at this job than the general run of current law faculty. They would also be more qualified than the practically oriented faculty that he champions in his conclusion. Rather than retrofit the law schools into a rag-tag version of the Federal Judicial Center, why not build from existing and potential resources to fit the right tool to the job? In his compulsion to remake the judiciary and law schools in his own image, Posner’s usual Weberian instincts abandon him.

Posted on 18 January 2016

PAUL HORWITZ is Gordon Rosen Professor of Law at the University of Alabama School of Law, and Visiting Professor at Harvard Law School.