« Props to the National Jurist | Main | Krugman's Liberal Paranoia about Conservative Paranoia »

Friday, March 23, 2012

Vermeule on Henry Friendly and Judging

Also worth reading is Adrian Vermeule's review, in the New Republic Online, of the new biography of Judge Henry Friendly. The Friendly bio has gotten excellent reviews so far, but Vermeule is more critical--not so much of the biography, but of Henry himself.

Vermeule argues that although Friendly has been highly lauded by other lawyers and judges, "it is actually a bit difficult to say what Friendly stood for, or what ideas of general and lasting significance he contributed to law and legal theory." Vermeule describes Henry as a classic Legal Process judge, whose "contribution was not to enrich the theory of the law but to provide a living model of lawyerly craft and good judgment." He contrasts him with other judges, like Hand and Cardozo, "who offer fertile theoretical ideas that can be distilled into formulas, theorems, and pithy aphorisms," and suggests that the latter category of judge is likely to enjoy a longer and more influential reputation. It is, in essence, a discussion of the role of good versus great judges, and what it means to be either. He concludes that "it is just the unalterable nature of things that craft and tacit knowledge are harder for future generations to understand and appreciate than theoretically grounded knowledge. The former can be transmitted only with difficulty, by practice and example, but the latter can be dehydrated and compressed into easily digestible packets."

Whether you agree with him or not, it's nice to see someone reviewing the Friendly book in these interesting terms. (I should say that I've read about two-thirds of the bio so far and find it quite strong, although I'm not sure it completely merits the exclamation mark awarded to it by Judge Posner in his foreword.)

There is one passage I was confused about, however. Vermeule writes:  

How exactly does one export Friendly’s traits of craft, integrity, and moderation to help other judges in other cases, judges not necessarily blessed with Friendly’s exceptional judicial character? A model of judging that cannot be standardized and widely reproduced is not much good to a large and increasingly bureaucratized federal judiciary, whereas the snappy ideas supplied by the Hands and Cardozos of this world are useful even to lesser lights.

Vermeule's point about styles of judging needing to be appropriate to a standardized and expanded judiciary is a fair one. But I fail to see how the "snappy ideas of the Hands and Cardozos of this world" are necessarily more capable of standardization and reproduction than craft skills. Read Vermeule's description of the "Cardozo Theorem." It is interesting and generative of ideas, but is it really any more capable of standardization than the kind of judgment displayed by Friendly? In any event, the review is well worth reading, as is the book.

Posted by Paul Horwitz on March 23, 2012 at 11:40 AM in Paul Horwitz | Permalink

TrackBack

TrackBack URL for this entry:
https://www.typepad.com/services/trackback/6a00d8341c6a7953ef0168e925171d970c

Listed below are links to weblogs that reference Vermeule on Henry Friendly and Judging:

Comments

Perhaps this is something like the difference between an art and a science. I can't effectively imitate Rembrandt; I *can* imitate someone who invents a better kind of paint.

Posted by: Eric Rasmusen | Mar 27, 2012 9:11:25 AM

I don't think Vermule is offering the Cardozo Theorem in particular as an example of a rule of decision or theoretical approach that is applicable by judges in future cases. Rather, he refers to Cardozo and Hand's development of judicial concepts like proximate cause, which most certainly has been proven to be capable of standardization and reproduction by future, less luminescent judges. Contra Friendly, however, whose influence can necessarily only extend to other judges who aspire to his manner of judging rather than his ideas.

Posted by: guest | Mar 23, 2012 12:16:22 PM

Post a comment