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Book Review Not-So-Simple Justice

REFLECTIONS ON JUDGING. By Richard A. Posner. Cambridge, Mass.: Harvard University Press. 2013. Pp. ix, 380. $29.95.

REVIEWED BY JORDAN M. SINGER*

mericans have a love-hate relationship with complexity. In many areas of life, we revel in intricate systems and the thorny details they present. The tinkerers among us procure, and immediately disassemble, the latest technology to understand its inner workings. Fantasy sports aficionados happily immerse themselves in statistical minutiae, trying to identify a pitching mismatch or an unheralded receiver due for a breakout performance. Through social media, we trace our degrees of separation, and marvel at the unexpected connections between friends and acquaintances from different points in our lives. Far from being obstacles, the details are precisely what make these pastimes worthwhile. In many other areas, however, we are eager consumers of virtually anything that promises a shortcut or simple solution. We click on Web ads that guarantee to solve the stubborn problems of belly fat and low credit scores with just one weird trick.1 Blogs and media outlets purport to explain all one needs to know about complex financial and political issues in a single chart.2 Half of eligible voters do not exercise their franchise even

* Associate Professor of Law, New England Law | Boston. I am grateful to Lawrence Friedman for helpful comments on an earlier draft. 1 See Alex Kaufman, Prepare to be Shocked!: What Happens When You Actually Click on One of Those One Weird Trick Ads?, SLATE (July 30, 2013, 3:00 PM), http://www.slate.com/articles/business/moneybox/2013/07/how_one_weird_trick_conquered_ the_internet_what_happens_when_you_click_on.html. 2 The complex issue explained in a single chart phenomenon has become widespread in the last few years, fueled by social media sharing. A quick and by no means thorough web search found the following issues purportedly condensed to a single chart since 2012: Environmentalism, Obamas Dismal Record on Jobs, Zyngas $200M Buyout of OMGPOP, Irans Regime Structure, Facebooks IPO Mess, The VA Governors Race,

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in the highest national elections, and many of those that do cast ballots base their decisions solely on low-information cues like a candidates name, gender, or party affiliation.3 For most Americans, there is nothing especially contradictory about this behavior. We have the relative luxury of embracing factual complexity when an issue interests us and tuning complexity out when it does not. Not so for judges. For them, confronting complexity head-on is a hazard of the profession.4 Public and private disputes are increasingly situated inand created bydetailed and intertwined systems, brought on by rapid advances in technology, communications, and transportation; economic transition; growing scientific and environmental awareness; and an everincreasing thicket of statutes and regulations. Pulling on a figurative loose string may unravel a much larger systemic design. Judges must tread carefully and think holistically. They cannot shrink away from an increasingly complex world. But as Richard Posner describes in his newest book, Reflections on Judging, 5 many judges are not meeting the challenge. This is especially true in areas involving technology, where cases invoking mathematical and statistical sophistication generallyand patent cases in particularleave judges scurrying for more comfortable ground (p. 55). Judges compensate for their discomfort by returning to the legal skills and procedures they know best. They premise their decisions on formalist canons of construction and arcane interpretive rules rather than squarely confronting the practical consequences of case outcomes. They avoid wrestling with complex facts by delegating the primary task of drafting opinions to law clerks, or by deferring to the findings of a lower court. They waste time and energy on non-substantive technicalities like perfecting their citation form. The issues still get decided and the opinions written, but in many instances without a sufficiently deep understanding of their real-world causes and effects. This focus on the familiar might be justified if it allowed the courts to operate more efficiently. But, Posner argues, the mechanisms that judges use to sidestep factual complexity actually create more work for the courtsand unproductive work at that. Time wasted in adherence to the hypertechnical
The Sequester Sham, The 2012 Election, Obamanomics, and The Drug War. See, e.g., Ilya Somin, When Ignorance Isnt Bliss: How Political Ignorance Threatens Democracy, POLY ANALYSIS, no. 525, Sept. 22, 2004, at 59 http://www.cato.org/sites/cato.org/files/pubs/pdf/pa525.pdf (reviewing polling data from the 2000 and 2004 election cycles); see also Anthony Champagne, The Selection and Retention of Judges in Texas, 40 Sw. L.J. 53, 100-102 (1986) (discussing candidate names); Marie Hojnacki & Lawrence Baum, Choosing Judicial Candidates: How Voters Explain Their Decisions, 75 Judicature 300, 308-09 (1992) (discussing candidate gender).
4 5 3

See ROBERT E. KEETON, KEETON ON JUDGING IN THE AMERICAN LEGAL SYSTEM 19.4.2 (1999). RICHARD A. POSNER, REFLECTIONS ON JUDGING (2013) [hereinafter REFLECTIONS].

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format of the Bluebook is a favorite example. Another is reliance on poorly fitting canons of construction and other textualist methods of interpretation, which direct the judges mental energy away from the parties real-world issues. Yet another is the growth of multi-factor balancing tests at the trial court level, which are entitled to heavy deference upon appellate review and therefore relieve the appellate bench from having to meaningfully engage with the facts of the case (p. 86). Applying such tests in the first instance comes at a cost to the trial court, and whatever decisional flexibility results from such complicated exercises in judicial discretion are all too often offset by the unpredictability and opaqueness of the resulting decision.6 These and other forms of self-imposed internal complexity (as Posner terms it) encourage judges to waste their energy on unconstructive busy work that misses the heart of the dispute. How can courts heal the self-inflicted wound of internal complexity? For Judge Posner, the answer is a stronger judicial commitment to legal realism; that is, plac[ing] emphasis on the consequences of judicial rulings, . . . consider[ing] systemic as well as case-specific consequences and thus avoid[ing] shortsighted justice . . . and [emphasizing the] analytical and empirical rather than the merely intuitive and political (p. 5). A realist judge (Posner occasionally uses pragmatist more or less interchangeably) gets his or her hands dirty with the facts, working with them, thinking through their short- and long-term consequences, and reaching an outcome that maximizes systemic benefits as much as possible. That decisional outcome is unlikely to have the legal purity of a formalist reading of the law, but it is more likely to have practical application. Per Posner, then, a formalist judge is to a realist judge what a theoretical physicist is to an engineer: the former works in an elegant, self-contained, rule-bounded universe; the latter must make things work even in a messy, imperfect reality. In Posners estimation, non-realist approaches to judging only serve to enable and conceal judges poor grasp of (and disinterest in) the relevant facts and consequences. In particular, Posner brands textualism, originalism, and various progressive interpretative tools as coping strategies for appellate judges unwilling or unable to address empirical reality (p. 17879). He derides the textualism and originalism championed by Justice Antonin Scalia and Bryan Garner together with their enunciated canons of
6 See Jordan M. Singer, Proportionalitys Cultural Foundation, 52 SANTA CLARA L. REV. 145, 18384 (2012). In civil litigation alone, the growth of electronic discovery has led to a judicially created seven-factor test for whether the costs of production should shift to the requesting party, see Zubulake v. UBS Warburg LLC, 216 F.R.D. 280, 284 (S.D.N.Y. 2003), and a three (really four)factor test for whether an adverse inference sanction should be imposed for negligent spoliation, see for example Residential Funding Corp. v. DeGeorge Financial Corp., 306 F.3d 99, 10708 (2d Cir. 2002), to supplement a five-factor proportionality test mandated by the Federal Rules of Civil Procedure. See FED. R. CIV. P. 26(b)(2)(C)(iii).

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construction7as a celebration of judicial passivity and a rhetorical mask of political conservatism (p. 179). Posner similarly deems scholar Akhil Amars recent interpretation of a progressive unwritten constitution8 to be rampant activism, so obviously unanchored as to be shunned even by liberal judges (p. 179). Only pragmatic realism, Posner contends, is the way forward (p. 366). Posners realist prescriptions extend both to decision-making and decision-announcing. He counsels that decision-making would be improved if judges, lawyers, and court staff all had a better appreciation for the skills involved in judging, and resources were allocated accordingly. Rather than focusing on esoteric jurisprudential philosophy, law schools should give students a realistic sense of the judicial process (p. 270). Rather than treat trial judges as a wholly different unit of the legal system, appellate judges should occasionally seek direct experience on the trial bench. 9 Rather than allocating patent cases to district judges at random, court clerks should assign such technologically complex cases to judges who are most able and willing to take them (p. 30809). And rather than blindly relying on an inadequate factual record, appellate judges should affirmatively seek out additional facts that bear on the systemic consequences of their rulings especially if those facts can be obtained easily on the internet. 10 As for decision-announcing, Posner insists that judges stop delegating their core responsibilities and return themselves to the center of legal reasoning and writing. Judicial opinions should be drafted by judges, not law clerks, and always with practical value to the audience in mind. Opinions should eschew unnecessary background facts and extraneous legalese, and avoid gruesome juxtapositions like Roe and its progeny (p. 250). Maps, charts, and photographs should be used wherever the visual depiction is more concise and helpful than a tedious written description. Legal opinions, in short, should be practical in both style and substance. Posner aims for that practical style in his book, with generally good results. His prescriptions are delivered with his distinctive prose straightforward and engagingwith a photo or illustration helpfully thrown in from time to time. But he is also occasionally prone to distracting

7 ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS 2941 (2012). 8 See generally AKHIL REED AMAR, AMERICAS UNWRITTEN CONSTITUTION: THE PRECEDENTS AND PRINCIPLES WE LIVE BY ixxvi (2012) (discussing the notion that America possesses more than a written Constitution, but an unwritten Constitution as well).

REFLECTIONS, supra note 5, at 12627 (An appellate judge who lacks a trial-court judges perspective on the litigation process will be handicapped in reviewing rulings by district judges.).
10

Posners appreciation for Google and Wikipedia is evident. See id. at 13243.

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bluntness. His critiques of Scalia and Garner on the one hand, and Amar on the other, are so pointed and pervasive that one strongly suspects that he wrote Reflections on Judging primarily as a vehicle to assault their interpretive models. His comparison of the federal court system to a brontosaurus and the Supreme Court to the brontosauruss brain (p. 38) is a clever but attention-diverting metaphor for those readers who recall that the giant beast was endowed with a comparatively tiny cranium. And his affinity for the omniscient parenthetical, especially those that are dismissive without also being explanatory, grows tiresome as the book moves on.11 These stylistic shortcomings, however, are in the end only minor, and the substantive argument of the book endures. Even for those familiar with earlier selections from the enormous Posner canon, there is enough by way of new ideas and new critiques in Reflections on Judging to warrant a close read. What, then, should one make of Judge Posner s latest defense of pragmatic realism? No doubt it carries a certain sensibility that is undeniably attractive. Posners reliance on empirical principles and call for judges to advantage reality over ideology invokes the best of Abraham Lincoln, William James, and John Dewey. But other modes of judging have also appeared facially attractive in the hands of their skilled advocates. The devil, as always, is in the details. And the details of Posners realism rest on three assumptions: (1) judges will agree as to what the relevant empirical facts are; (2) judges will agree as to what the relevant empirical facts mean; and (3) judges will agree as to the proper social and legal context in which the facts are interpreted. Most of the time, these assumptions should hold and return a sensible resultthey are the easy cases. But in easy cases, virtually any reasonable interpretative method will reach the right result. Posners concern is properly with the difficult cases, and here Posner s assumptions prove to be far more fragile. Indeed, the fragility of each assumption comes through clearly in his own writing. Consider the first assumption, that judges will agree as to what the relevant facts in a case are. Reflections on Judging suggests that the relevant facts are always ascertainable and unambiguousat least when sought by motivated and competent professionals. Thus Judge Posner chides attorneys for not constructing an adequate appellate record (p. 13133), and his judicial peers for larding their written opinions with unnecessary factual details.12 But the relative importance of any fact is necessarily a subjective

11 See, e.g., id. at 103 (observing how materials on Iraqi law are uselessly abbreviated in the Bluebook); id. at 206 (noting briskly that a canon of construction described by Scalia and Garner is new to me); id. at 251 (referring to hourly billing by lawyers as tenacious though at last eroding). 12 See, e.g., id. at 260 (identifying how the U.S. Court of Appeals for the District of Columbias

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determination, and intelligent minds may differ as to how the same facts should be prioritized. Consider virtually any Supreme Court case on personal jurisdiction in the past thirty-five years, in which different Justices have given the same (frequently undisputed) facts radically different emphasis. Or consider, for that matter, one of Judge Posners own cases: Roberts v. Sears, Roebuck & Co.13 The question was whether a socket wrench with an automatic release was an obviousand therefore unpatentable invention. Posner found the improved wrench to be obvious as a matter of law, concluding from his reading of the record that the invention was simplicity itself and a minor improvement on existing tooling.14 His colleagues, however, read the identical record facts to determine that the trial jury was justified in finding the patent valid.15 In any fact-intensive inquirypersonal jurisdiction, obviousness in patent law, or a negligence determination, to name a fewreasonable minds can and do differ on relevance. There is more. Even if judges were always in agreement as to the existence and relative importance of the facts, a complete factual record is not a panacea. Judges may try to restrain their decisions to the facts presented, but intuitions, biases, and life experience nevertheless present themselves as unavoidable lenses that color review of the record.16 Posner himself provides a stunning example of how intuition can displace empirics. In what may be the most remarkable passage in Reflections on Judging, he criticizes Justice Scalias dissent in Arizona v. United States17 by questioning Scalias assumptions about the effect of illegal Mexican immigrants on the Arizona economy (p. 218). Posner notes, [m]aybe Arizonas illegal immigrants are more violent, less respectful of property, worse spongers off social services, and otherwise more obnoxious than the illegal immigrants in other states, but one would like to see some evidence of that (p. 218). So far, so good. Not two sentences later, however, Posner offers up his own largely intuitive analysis about the economic impact of immigration: Doubtless most of them [Arizonas illegal immigrants] work. Mexicans are famously hard workers. What would it do to the Arizona economy if these workers suddenly vanished? On the basis of Alabamas experience with cracking down on illegal immigrants, one can predict that Arizonas economy would

opinion in United States v. Morris is 3,237 words long, while my version is 602 words long).
13 14 15

723 F.2d 1324, 1327 (7th Cir. 1983). Id. at 1346.

Id. at 1339. See, e.g., Chris Guthrie, Jeffrey J. Rachlinski & Andrew J. Wistrich, Blinking on the Bench: How Judges Decide Cases, 93 CORNELL L. REV. 1, 643 (2007); Chris Guthrie, Jeffrey J. Rachlinski & Andrew J. Wistrich, Inside the Judicial Mind, 86 CORNELL L. REV. 777, 77784 (2001).
16 17

132 S. Ct. 2492, 251122 (2012) (Scalia, J., concurring in part and dissenting in part).

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be seriously harmed (p. 21819). That may well be true, but Posners only evidence for this position is a single BusinessWeek article on Alabama immigration policy (p. 219 n.116). Given how fiercely Posner critiques Scalias largely intuitive assumptions just a sentence earlier, the cognitive disconnect proves too much. If Posnerwho is, after all, thinking and writing about the very issue of judicial intuitionis susceptible to such flaws, how confident can any of us be that judges routinely set aside any belief or intuition that lacks ready empirical support? Pragmatic judging faces another psychological obstacle: even if the judges agree on the accuracy, authenticity, and relevance of the facts presented, there may not be a consensus as to the empirical reality those facts reflect. The Supreme Courts 2007 Scott v. Harris decision is the most famous, recent example: eight Justices characterized a videotape of a nighttime police pursuit as a Hollywood-style car chase of the most frightening sort, placing police officers and innocent bystanders alike at great risk of serious injury.18 By contrast, Justice Stevens (and two lower court judges) saw the same videotape and reached a wholly different conclusion: that a reasonable jury could conclude that the chase was neither reckless nor particularly dangerous to innocents.19 Subsequent scholarship has shown that differing interpretations, like those in Scott, are the products of cultural cognition and motivated reasoning; simply put, human beings sometimes see the same facts differently based on their age, gender, background, education, and personal experience.20 Posner is not the only judge to believe that his own interpretation of the facts best reflects reality,21 but whereas that belief is hardly fatal to a textualist or progressive interpretation of the facts, its fit with empirically based realism is, at best, extremely uncomfortable.22
550 U.S. 372, 380 (2007). Id. at 390 (Stevens, J., dissenting). 20 See generally Dan M. Kahan, David A. Hoffman & Donald Braman, Whose Eyes Are You Going to Believe? Scott v. Harris and the Perils of Cognitive Illiberalism, 122 HARV. L. REV. 837, 842 43 (2009). See also Dan M. Kahan, The Supreme Court, 2010 Term, Foreword: Neutral Principles, Motivated Cognition, and Some Problems for Constitutional Law, 125 HARV. L. REV. 1, 34 (2011) (arguing that [w]hen Justices rely on empirical data in controversial decisions, they no doubt often honestly believe that such evidence compels a particular result. If so, its possible that their perceptions, those of their critics, or both could be influenced by motivated reasoning.). 21 Although both the volume and style of Posners writing make him more susceptible to the charge. See, e.g., David F. Levi, Autocrat of the Armchair, 58 DUKE L.J. 1791, 179293 (2009) (identifying how Posners generalizations about the ways of the judge and the world are ex cathedra pronouncements that generally lack any identified objective support outside of his own experience and belief. For many of his assertions, it would appear that his dataset of judges is a set of onehimself.).
19 18

Somin, among others, has made a similar point in reaction to Judge Posners earlier writings. See Ilya Somin, Richard Posners Democratic Pragmatism and the Problem of Ignorance, 16 CRITICAL REV. 1, 6 (2004).

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Finally, even outside the realm of factual interpretation, understandings about the context or systemic effects of the law may vary considerably from judge to judge. Judge Posners own comments on the Second Amendment in Reflections on Judging provide another excellent (and presumably unintentional) illustration of the problem. Posner declares that [t]here are few more antiquated constitutional provisions than the Second Amendment; it is, in his words, a fossil (p. 194). Accordingly, Posner suggests, pervasive gun ownership and gun-related deaths are social problems requiring evidence-based solutions for which the states are the indispensable laboratories (p. 219). This is surely a reasonable position if one accepts the implicit argument that gun ownership is primarily a collective social issue. But for many Americans (including, one would presume, many judges), gun ownership is first and foremost an individual right. It is no more permissible to allow varied state experimentation with gun regulation than it is to allow states to differentially regulate freedoms under the First, Fourth, or Sixth Amendments (to name a few). If judges view the legal landscape in such varied ways, even an agreement on the relevant facts will lead to very different views of what constitutes a sensible result. In the end, the primary legacy of Reflections on Judging will be its powerful demonstration of the real complexity that frequently underlies judicial decision-making. This is not a minor contribution. Thus Posner can rightly identify the flaws in formalist reliance on canons of construction, originalist reliance on history, and progressive constitutionalist reliance on policy. Ultimately, however, Posners own interpretive methodology runs into the same rocky shoals: the foundational principles needed to make it a coherent theory are fatal to its universal application. Just as canons of construction, history, and policy can be made malleable in the hands of a motivated judge, so too can sensibility. Different judges will see facts, context, and consequences differentlyat least in the hard cases where interpretative philosophy really matters. As a universal approach, then, pragmatic realism must collapse of its own internal inconsistency. This does not devalue Posners insights, but it does diminish the utility of their application. Even in a system devoted to combating it, complexity, it seems, is inescapable.