From his perch at the U.S. Court of Appeals for the Seventh Circuit, Judge Richard A. Posner has churned out more books in the last decade than most academics write in their entire careers. His books on diverse subjects like catastrophic risk (Reference PosnerPosner 2004), intelligence and counter-terrorism (Reference PosnerPosner 2005, Reference Posner2006, Reference Posner2007), and the financial crisis (Reference PosnerPosner 2009, Reference Posner2010) reveal a remarkable facility for analyzing complex systems. This same facility is evident in Posner's recent work on judging. Indeed, both How Judges Think (Reference PosnerPosner 2008) and the present volume approach the federal judicial process by describing and analyzing its complex interactions and by proposing solutions to manage this complexity. Reflections on Judging takes a more personal approach. Its analysis of the federal judiciary is “mixed with personal recollections, references to a number of [Posner's] own judicial opinions, and recommendations to judges and judicial administrators” (p. 11). In the end, Judge Posner succeeds in describing judicial complexity and proposing some moderate solutions, but his overall diagnosis of the problem is overly empiricist.
Posner summarizes his central theme in the introduction and again in Chapter 3. The “external complexity” of federal cases is growing, he says, because of increasingly “complicated interconnections or interactions” within technological, economic, or other systems (p. 54). At the same time, Posner warns, the “internal complexity” of the law is also growing as federal judges increasingly hide behind old-fashioned formalist habits that obscure external complexity. He begins in Chapter 1 with a short autobiographical sketch summarizing his disillusionment with law and legal institutions at nearly every stage of his career. The reasons for this unimpressed attitude may be found in Chapters 2 and 3, where Posner traces the rise of internal complexity. Institutionally, judicial preoccupation with managing bloated staffs of law clerks leads to low-quality ghostwritten opinions. Substantively, judicial obsession with legal language and multifactor tests leads to needlessly complicated legal doctrines. Both problems, Posner claims, prevent judges from understanding and analyzing complex factual issues in cases involving medicine, computers, banking and finance, biochemistry, and other fields. To decide these cases well, he asserts, judges need better “evidence” and “data” concerning these complex systems (pp. 62, 70). But “judicial insouciance about the real,” Posner concludes, prevents judges from considering these things (p. 78).
In Chapter 4 and the remainder of the book, Posner traces “judicial insouciance” to formalism: a “passive,” “umpireal” conception of judging that seeks the “right answer” in doctrinal tests, canons of construction, rules of citation, and other obscurantist paraphernalia (pp. 110–111). The solution, he claims, is for judges to pursue “realism with depth” (p. 353): to be “guided by a sense of the purpose of the text” and its “likely consequences” (pp. 120–21). Chapters 5 and 8 counsel judges to simplify their opinions through pictures and information from Google, Wikipedia, and other web sources, by using law clerks as editors rather than drafters, and by excising legal jargon. Chapter 6 decries most theories of judicial restraint as bad-faith efforts to hide judicial discretion, and it urges judges to be restrained instead by the “real-world impact” of their decisions and to allow more local experimentation (p. 175). Chapter 7 critiques conservative and liberal theories of legal interpretation for assuming that textual meaning can be ascertained conceptually, and it defends a “loose constructionist” approach (p. 120) that is sensitive to the “full factual context” (p. 234). Chapter 9 defends an “inquisitorial” style of fact finding by district judges (p. 299), and it makes suggestions for improving jury trials. Chapter 10 concludes with a list of recommendations for judicial staffing and training, as well as legal education.
Illustrating every chapter with examples from Posner's experience helps create a more intimate book. And he is right that the formalism he critiques is too simplistic, resulting in needlessly complex legal arguments and opaque, jargonistic opinions. His moderate recommendations to fix these problems are welcome: judges should be prepared and educated more systematically, and academic legal scholarship should be less self-indulgent. But other recommendations are troubling. When appellate judges wander from the record by using Google, for example, to discover facts outside the record, they deprive litigants of the right to contest these facts through an adversarial process. Posner notes the danger of internet research by juries, warning about misleading, confusing, and prejudicial information. But he never explains why appellate judges would not run the same risks. Surely, trial judges are in a better position to fairly assess opposing arguments about this evidence.
Posner's nonchalant embrace of the internet as a way of managing external complexity is but one small example of a major problem with the book: even as he attacks formalists for uncritically accepting traditional legal norms, he uncritically accepts modernist hubris about empirical reality. The book's central argument depends upon a fact fetish—belief in a realm of pristine reality, and faith that this reality can be accessed objectively. But as other pragmatists have noticed, abandoning what count as persuasive facts within one worldview does not lead us to a neutral perspective on reality. We merely adopt another worldview where different facts are seen as persuasive (see, e.g, Reference Fish, Brint and WeaverFish 1991: 56–62). Ignoring this constructivist lesson, Posner assumes that when judges conduct Google searches, for example, they are seeing the objective context of the case rather than the carefully selected results of Google's search algorithm. Similarly, he assumes that when judges examine social scientific studies, they are seeing objective data rather than the carefully selected results of dominant research paradigms.
Posner admires Holmes's Darwinist view of truth. But if truth is merely a “body of ideas that has thus far survived the competitive struggle in the intellectual marketplace” (p. 169), there is no realist escape from formalist illusions. There is only a power struggle where “might ultimately prevails,” and judges should “get out of the juggernaut's path” (p. 172). Paradoxically, “insouciance about the real” seems quite consistent with this cynical attitude. But others with a more robust conception of truth, justice, and the rule of law are unlikely to be moved.
