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Monday, November 28, 2005

The Foreword

One often hears about Sunstein that he has no choice but to be hit or miss: if one writes hundreds of pages a year, one just cannot be careful and fully insightful on each page.  One rarely hears this criticism directed at Posner.  Yet, after reading Posner's Foreword, "A Political Court," I can't help but feel that the charge against Sunstein applies to Posner -- at least for this article.

It isn't that there was anything interestingly wrong in the article (though his reliance on the group polarization literature was less than careful -- institutional context matters a great deal for whether the effect is actually measureable, a detail fairly important to his argument).   It just felt a bit all over the place and the organization was a bit haphazard.  It was neither a sustained rejoinder to critics of his "pragmatism" who feel his theory is completely indeterminate; nor a sustained argument for a new Constitutional Court; nor did it very carefully address Hart's Foreword, which it set as a target of sorts.  In the course of addressing Hart's Foreword, it helpfully clarified that the Court's incredibly shrinking docket is not having many of the effects routinely falsely imputed to it.  But its focus on how indeterminate many of the Court's decisions are -- and that politics must invariably play a role in Supreme Court decision-maiking -- is fairly old: we all have been exposed to CLS and legal realism. 

On the other hand, the very fact that these old chestnuts are repeated and confirmed by a sitting judge is of some value.  From my perspective, I am glad that a judge is telling the world that judges don't read records and that they rarely even write their own opinions; these are outrageous facts about the judiciary that we rarely confront.   Some of the best parts of the article are the random personal reflections within, for example when Posner notes that he sometimes thinks of a case as a "toss-up," but then grows "comfortable" with his decision because "there is a psychological need to think one is making the right decision."

One funny note: Since Jeff Rosen's New York Times article about the "Constitution-in-Exile," most conservatives have been aggressively policing the use of the term, trying to argue vigorously that there is no such thing.  Posner actually uses the term, albeit in quotes from the Ginsburg article from which the term derives, in a footnote about Lochner's respectable defenders.  Oh, yeah:  He sort of defends Kelo too.

Posted by Ethan Leib on November 28, 2005 at 03:37 PM in Article Spotlight | Permalink


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I didn't notice Matt's comment until now. As a former Posner R.A. I can attest that Posner writes all of his own work, except for the pieces which are officially co-authored.

Posted by: Will Baude | Dec 2, 2005 2:44:01 PM

I really enjoyed Posner's Foreword, which (as he noted) involved a fair amount of introspection. The implications of Supreme Court decisions for lower courts was one area where the introspection was obvious, and he criticized Booker on those grounds. He also suggested (page 95) that a separate concurrence by a signatory to the Court opinion in a 5-4 decision (a' la Justice Kennedy in Kelo) was a disservice to the lower courts, as such opinions muddy the message about what opinion is really controlling. Better, Posner argued, to concur only in the judgement, if there is something in the opinion for the court that you cannot fully stomach.

Posted by: Jim Leitzel | Dec 2, 2005 2:18:35 PM

Conservatives are aggressively policing the use of the term "Constitution in Exile" after Rosen's article? For that to be true there must have been uses of it BEFORE the article. And, save for Ginsburg, there were none.

Posted by: Abadaba | Nov 28, 2005 9:09:43 PM

That Posner easily falls in to the camp of people who write so much stuff that it can't possibly all be both 1)good, 2)not heavily recycled for earlier work, 3)fully written by him and not by research assistants (I don't know if he does the last at all, but it's common enough in this group) is, frankly, obvious and has been for many years. It's just not possible to write that much and not have lots of it be poorly digested crap. This isn't to say that none of it is good, but certainly I'd rather have people (Sunstein, as you mention, but there are others too) write less and have it actually be thought out.

Posted by: Matt | Nov 28, 2005 6:29:00 PM

Oh. And at least around Chicago from 2002-2004 and Yale from 2004-05, one hears the "hit or miss" criticism about Posner much more frequently than about Sunstein.

Posted by: Will Baude | Nov 28, 2005 4:44:05 PM

Funny. I thought these things were precisely what made the Foreword one of Posner's best pieces of academic writing in a very long time. It was actually about the Supreme Court term which so few HLR forwards are, and the grounding in cases made it clearer how Posner expects his theory to play out and why, especially since Posner is neither a crit nor a legal realist.

Posted by: Will Baude | Nov 28, 2005 4:43:13 PM

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