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Thursday, August 10, 2017

Is "The Federal Judiciary" Necessary?

I have just made my way through Richard Posner's latest book (as of the time of posting), The Federal Judiciary: Strengths and Weaknesses. Not without difficulty: The second half of the book was more of a slog than the first, and finishing it was more an act of will than of love. Before making two points about it, I want to offer some context; another bit of context, a confession, follows at the end. So: 1) I reviewed and criticized Posner's last book, Divergent Paths: The Academy and the Judiciary; 2) in the course of discussing William Domnarski's recent biography of Posner (note that I screwed up Domnarski's name in that post; my apologies), I suggested that it is appropriate and relevant to ask whether Posner has declined and whether his recent work and other statements suggest that it may be time for him to retire (I did not answer the question; I just said it was a natural and important question to ask and criticized the apparent reluctance to do so, for him and for Justice Ginsburg too); 3) I recently raised that question again, albeit in the course of praising something he had written this summer; and 4) as I have often noted, Posner has long been my favorite legal writer and thinker. (Not my "hero." I think lawyers and legal academics are better off without heroes and hero-worship. The famous dedication to John Hart Ely's book Democracy and Distrust is moving, captures a common mentality of lawyers and legal academics, and is a mistake.) If I think there are good reasons to ask whether Posner has declined, these are the questions of an admirer, not a hater. I find moving his quotation from Yeats at page 376, beginning, "Grant me an old man's frenzy,/Myself must I remake/Till I am Timon and Lear," although one might recall that on some interpretations Lear begins by displaying pride and narcissism, harms his kingdom by denying his own aging and death, and comes to madness. 

A longtime critic of Posner (and admirer and former clerk of Posner's nemesis, Justice Scalia), Ed Whelan, has a series of posts at The National Review's website detailing and lambasting the book. (The best posts, in my view, are this and this one.) I do not share all of Whelan's perspective or agree with all of his criticisms of Posner or the book, although some seem on-target. But I write here to offer a partial defense of the book and to raise one general, critical question about it. 

First, the book isn't bad! That's faint praise, but seems necessary in light of Whelan's widely shared posts, which might well lead readers to wonder whether to bother with the book at all. (Whelan does acknowledge that there are good bits and pieces here and there, but the point may get lost amid all the disparaging remarks.) With the caveats noted below, I enjoyed a fair amount of the book, especially the first half. As with a number of Posner's books, even when the book as a whole is questionable or seems loosely put together, there are many tidbits within it to enjoy and profit from. There are reasons to read it. 

For example, as I noted in my last post, I just taught the Intro to Law class for entering 1Ls at my law school. I told my students that it is common for law students to seek definite definitions for and applications of frequently used legal phrases ("intermediate scrutiny," "clearly erroneous," and so on), and common for lawyers to argue over those phrases in the manner of those who think some definite meaning can be derived from them, an exercise that easily turns into a kind of scholasticism. I told the students that such phrases rarely if ever have a precise or fixed meaning, and that--their understandable desire for certainty notwithstanding--it would be a mistake for them to begin their legal educations, or careers, under the illusion that most (or any) legal/judicial language of this sort can be reduced to some kind of mathematical formula. Such phrases should be understood as practices, or as placeholders standing in for an activity calling for judgment, and perhaps summing up some kind of underlying concept or policy, but not a definite one. Posner has a lengthy (too lengthy) section (especially 239-76, but really most of chapter 3) discussing various standards of review and other legal phrases. He argues, by picking them apart, that "there are no satisfactory answers to my questions about the meaning of familiar legal phrases commonly invoked by lawyers and judges without any clear idea of their meaning," and that they "exemplify not only concealment and indirection but also sheer superfluity in legal discourse." The discussion would have been better if it had been shorter, and some of the individual criticisms seem too cute. But it's useful and refreshing. Law students, lawyers, and judges would benefit from reading it.      

The real question is not whether the book is bad, but whether it is necessary. To his credit, Posner announces on the second page that the book is what he calls a "macédoine," a "medley or jumble." I would call it a "gallimaufry," a confused medley or jumble. Also to his credit, he acknowledges the "somewhat unconventional" format of the book, which "contains a good deal of quoted material." "A good deal" is an understatement. The book is about 430 pages long. Of that, some 130 pages consist of long block quotes (I tried not to count short ones), reprints of his own writing (including several judicial opinions), and most strikingly long sections of other people's writing, including lengthy judicial opinions from his own and other courts. Some are useful. Many are useful but could have been shortened or summarized. Some are not: Did we really need five and a half pages of a Slate dialogue between Posner and Akhil Amar? A few are embarrassing: The introductory chapter contains a three-page laudatory review of his last book, from the Los Angeles Daily Journal. At times this feels less like a book book and more like a scrapbook or commonplace book. Much of it feels loosely sutured together. As Whelan notes, it is full of digressions and divagations--often true of Posner's books and usually worth the diversions, but in this case ultimately tedious and marked by abrupt transitions. Imprisoned in this fat book is a much thinner one. I would complete Cyril Connolly's quote and say "wildly signalling to be let out," but I don't see much evidence of that. The epilogue feels tacked on and perfunctory. One understands the desire to acknowledge the election of Donald Trump, but it doesn't add much, unless reprinting the four-page open letter to Trump from "Constitutional Law Scholars" can be considered a fruitful addition. It doesn't seem so to me, especially given that it's an open letter and easily accessible.

(A more substantive side note: Religion plays a weird role in the book, getting numerous brief but ominous references. Posner quotes himself saying that "our deepest values (Holmes's 'can't helps') live below thought and provide warrants for action even when we cannot give those values a compelling or perhaps any rational justification. The point holds even for judicial action. The judge [inevitably] . . . preserves a role for conscience." But he returns again and again to only one "can't help" or "deepest value," religion, often highly speculatively and generally suspiciously if not disparagingly. The closest he comes to a justification for this fixation is a short passage--immediately after arguing with seeming approval that judges are inevitably influenced by their "deepest values" and "conscience[s]," and he notes elsewhere in the book that judges' many priors include religion--offering a cursory and tendentious argument from the Establishment Clause. That's not enough of a hook on which to hang his repeated, abrupt, almost obsessive references to religion. He should have said more about it, or less.)      

I said I especially enjoyed the first half of the book. That's no surprise. I also enjoyed it when I read most of it in his Divergent Paths, Reflections on Judging, How Judges Think, and his two editions of The Federal Courts--not to mention pages and pages elsewhere excoriating the Bluebook. Of course there are some changes and additions, especially from his earlier Federal Courts books. But a good deal of it is a mere reprinting or restatement of recent writings without building on them. The closest to a justification for this extreme repetitiveness that I can find is his statement (at page 393) that his oft-stated skepticism and criticisms are "very largely ignored" and that "[c]riticisms by me that seem irrefutable are seemingly not even noticed, as if I were exhibiting paintings to a blind man or singing to a deaf one." I would urge him to take more comfort than that: I think much more attention has been paid than these quotes suggest. Even if I'm wrong, I don't think it justifies repeating, quoting, or paraphrasing all this yet again and so soon after his last three books on these subjects. One despairing memoir from Lear following his displacement would have been enlightening; four or five would have been tedious, and provided some evidence that it was indeed time for him to exit the stage.

One must note that some books, including some of Posner's previous books, consist largely of reprints of published articles. Maybe that weakens my general point a little, but not much, I think. Some of these kinds of books are indeed superfluous. But in most cases those articles are less likely to be encountered by the general reader, and there is some value in their being collected in book form. The best of them have a unity of purpose that sheds light on the collection as a whole, and make meaningful changes to the articles or add connective tissue that contributes a new element or greater clarity to the work, making it more than the sum of its parts. The books themselves, as books, have some purpose and novelty, even if the material is collected from elsewhere. There's a difference between that and simply repeating what one has already said, at length and as well or better, in previous and recent books.    

In sum, I don't think the book was or is necessary. And to that I would add (with the confessional caveat below) that I doubt in particular that it was necessary for Harvard University Press to publish it. Perhaps that suggests that I place too much faith in university presses, especially elite ones, and am engaging in a form of snobbery or credentialism. I hope not. But I do think that university presses have a valuable niche role to play in publishing, and that elite university presses ought to make the most of that role. Some presses--Oxford and Cambridge come most readily to mind--maintain huge lists. Others, like Harvard or Yale, do not, and should be selective in forming their relatively small booklists. They still have some importance (to me, at least) for their signaling function or imprimatur. The books they publish should deserve that imprimatur and add something to the literature. This one doesn't. (And, as I have suggested, it was not edited as well as one might hope or expect, although Posner thanks the Press for "critical comments on the structure and substance" of the book. I credit that statement, but it might tell us more about the state of the earlier drafts than about the quality of the final product.) A trade press could have published it, perhaps in softcover only. (I haven't read Justice Ginsburg's In My Own Words, which is mostly a collection of speeches and other ephemera along with some co-authored biographical material. Perhaps it is a work of genius. But Simon & Schuster was an adequate, and probably more profitable, home for it; it didn't need and probably didn't merit the imprimatur of a university press.) Or he could have kept working on it until it made a serious and new contribution.  I got some pleasure from the book--occasionally from new things, but mostly from reading what I had basically already read in his other recent books. I'm not panning it, as such. But I doubt strongly that it was necessary. 

* A final confession seems appropriate. I have published one book with Harvard University Press and, more relevantly, have another book in progress with them. For "in progress," read "incredibly late." Some of the reasons it is so late are fair ones: several surgeries and lots of chronic pain. Others are lamentable but understandable: I decided it needed an empirical section, and that is proving more difficult than I thought, something I ought to have weighed more heavily when estimating its date of completion. None are sufficient. I was greatly cheered by this recent article, but I'm not counting on similar forbearance, and I'm terribly embarrassed and frustrated by my lateness. I wrote last year about the effects that both chronic pain and the drugs used to treat it can have on one's productivity as a writer. That is an explanation, not an excuse--others have done more while laboring under greater burdens--but it doesn't fully capture how frustrating and demoralizing it can be to try to get things done when you feel like only half a fully functioning person. Especially given my own ambitions, I would very much like to be writing more and faster right now, as I used to. I can only apologize that I cannot, and try to press on. In any event, it didn't seem fair to criticize Posner's book--which has the comparative advantage to my own of actually existing--and especially to reserve some of that criticism for the Press, for publishing it in this form, without acknowledging the plank in my own eye.    

 

        

Posted by Paul Horwitz on August 10, 2017 at 10:12 AM in Paul Horwitz | Permalink

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