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Wednesday, January 20, 2016

Divergent Paths, the "Posnerian Clone Wars," and Two Takes on Legal Education

In the New Rambler Review, which incidentally is a great resource, today's example notwithstanding, I have a review of Richard Posner's new book, Divergent Paths: The Academy and the Judiciary. Here's my summary of the book's thesis:

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.

And here is my basic assessment:

In Divergent Paths, [readers] 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. . . .

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. . . . 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.

 After the jump, I offer more substantial excerpts. One suggestion I make toward the end of the review is that instead of making recommendations for the future of law schools based, by his own admission, only on his knowledge of the elite law schools, Posner should have considered the possibility of "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." [For what it's worth, I have taught at five law schools, and in a week will begin a visit at a sixth, representing all "tiers."] I also write:

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, [Posner] 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.

I thought, in light of my recommendations, that it would be nice to close this post with a "But see": Rebecca Roiphe's new article, Tilting at Stratification: Against a Divide in Legal Education. The abstract states, in part: "Critics suggest we divide law schools into an elite tier whose graduates serve global business clients and a lower tier, which would prepare lawyers for simple disputes. . . . The article draws on [ ] history to argue that there are no easy solutions. In order to fix the problems of legal education, we need to address the question of professionalism in general and distill what it is that is valuable about a separate legal profession. The profession should train all our lawyers in those skills. The intellectual and theoretical approach to the law is necessary to both rich and poor clients, therefore, all lawyers--not just those who graduate from elite schools--ought to be trained in the complex nature of the law and its relation to society, culture, and politics."   

 

More excerpts:

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. . . . [T]he 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. . . . 

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. . . . One might think, [given his diagnoses], 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. . . . 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 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. . . . 

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. . . . 

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 by Paul Horwitz on January 20, 2016 at 07:43 AM in Paul Horwitz | Permalink

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