Inside the Mind of a Judge

An Interpretation of Posner’s Problems of Jurisprudence

Copyright © Raymond L. Woodcock 2000 All Rights Reserved

About Richard A. Posner This book presents my interpretation of a book written by Richard A. Posner. Richard Posner was born in New York City in 1939. He graduated from Yale College, graduated from Harvard Law School three years later as President of the Harvard Law Review (and was evidently first in his class), passed the New York bar exam, and immediately became a clerk for Supreme Court Justice William J. Brennan Jr. From there, he went on to positions at the Federal Trade Commission, the Office of the Solicitor General, and the President’s Task Force on Communications Policy. When he was only 29, he became a professor at Stanford Law School, and then went to teach at the law school at the University of Chicago. In 1981, he became a judge on the U.S. Court of Appeals for the Seventh Circuit, where he is now Chief Judge. (The Circuit Courts of Appeals, of course, are the highest courts in the nation except for the Supreme Court.) He has published many books and articles, and also holds a number of honorary degrees. As a general introduction to what others say about Posner, I offer the following reviewers’ comments regarding his 1995 book, Overcoming Law, which made it onto the list of the New York Times Book Review’s Editor’s Choice Best Books of 1995: Posner is the real thing: a philosopher and intellectual who despite his immense learning has retained a strong sense of the humane and the decent. If that is pragmatism, then we need more of it. – Paul Reidinger, ABA Journal Richard Posner is the most prolific and creative judge now sitting on the federal bench. These essays in Overcoming Law, like everything he writes, are exhilarating in their range and wit and candor. – Jeffrey Rosen, Yale Law Journal

Posner is a towering figure in American law, both as a judge and as a scholar, and one of his greatest merits has been his capacity for intellectual growth – Daniel Farber, University of Minnesota Law School In this book, I provide an interpretation of Posner’s 1990 book, The Problems of Jurisprudence, whose topics and organization seemed most useful for my purposes. Here are a few reviewers’ comments about Problems of Jurisprudence. You can find these comments, like those above, at the Harvard Press Website (http://www.hup.harvard.edu/Also.by/Also.Posner.html): Richard Posner is one of the nation's most influential thinkers .... He spearheaded the law and economics movement that has, in the eyes of many, revolutionized the entire legal enterprise .... The bulk of his book consists of close analyses ... and crucial discussions ... all of which are bolstered by an impressive array of references to the rich literature of contemporary law, philosophy, science and jurisprudence. – Calvin Woodward, New York Times Book Review [Posner's] book will challenge everyone. All sides will likely draw upon the work, even as they differ with it and among themselves .... [It is an] extraordinarily wide-ranging, intellectually stimulating book. – Robert A. Katzmann, Christian Science Monitor As one reads through this remarkable book, Posner's vision of law slowly builds to a climax that ... is awesome .... [He] tackles all the basic problems of legal thought and of moral and political philosophy since the time of Plato and Aristotle [and] enables us to see the richly textured fabric of our legal system in a more coherent manner than has anyone else. – Stephen B. Presser, Chicago Tribune

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For further information about Richard Posner, see http://modern democracy.com/posner.html and http://www.law.uchicago.edu/Posner/ Questioning Richard Posner Winning is important in our society. Winners are assumed to be best. Very few applicants are admitted into elite law schools; fewer still become professors at those schools; and it is a truly tiny group who become leading federal judges, as Posner has done. He is the winner, and those who have tried to compete against him are second-best. Or maybe that’s not quite right. The reader is probably aware that even a person who gets appointed to the Supreme Court can still make some pretty big mistakes. Posner, too, is probably wrong sometimes. How significant are his mistakes? We would not normally suspect someone in his position of being a menace to society, but his book may make you think otherwise. To prime the pump, I offer the following excerpts from two reviews of his writings. First, on Posner’s favorite subject, I quote Jedediah S. Purdy, “The Chicago Acid Bath: The Impoverished Logic of Law and Economics,” The American Prospect, no. 36 (January-February 1998): 88-95 (http://epn.org/prospect/36/36purdyfs.html), as follows: [Posner] believes that morality ... is a tangled mass .... [He] is convinced that economics ... is a science able to illuminate all human behavior. [Thus] he describes all areas of sexuality as ... measurable in the same terms as other appetites. For instance, prostitution is a “substitute good” for marriage. ... “The difference is not fundamental. In ... marriage, the participants can compensate each other for services performed by performing reciprocal services, so they need not bother with pricing each service.” ... The desire for rape is, as Posner writes, “for the most part quite normal,” but law should discourage it because its one-sidedness fosters an inefficient rearrangement of goods and services. ... [Yet] [a]nyone who tried to put a price tag on a marriage would show us that he didn’t understand the point of marriage. ... [W]hen we choose among various courses of action, we always consider several kinds of value .... Either we are always trying to iii

“maximize” many, often inconsistent values or, more plausibly, [Posner’s wealth-maximization] metaphor is just wrong ... Second, on the topic of how the courts should operate, here’s a quote from Senior Judge Jon O. Newman (U.S. Court of Appeals, 2nd Circuit), who wrote “Judge Posner's Crisis Recedes: A Review of Richard Posner’s The Federal Courts: Challenge and Reform” (at http://jurist.law.pitt.edu/lawbooks/revapr98.htm#Posner): [Posner speculates] that people dissatisfied with their state government can (will?) move to another state ... [whereas] I would have thought that climate, job opportunities, tax policy, and quality of life considerations affect most people’s choice of residence far more than their perception of the extent to which a state's courts are adequately checking other branches of state government. ... In some instances, his reliance on economic theory yields recommendations that are startling. Commenting on the rise in federal court caseloads, for example, especially at the appellate level, he points out that those who administer the court system have been reluctant to take one of the obvious steps to reduce demand for judicial services—impose delay. ... Absent from his analysis is any consideration of the societal costs of deliberately delaying the resolution of court disputes. Perhaps Posner himself best sums up who he is and what it took to get where he is. Consider this quote from Problems of Jurisprudence (page 192): The judge’s essential activity ... is the making of a large number of decisions in rapid succession, with little feedback concerning their soundness or consequences. People who are uncomfortable in such a role -and perhaps they are the most introspective, sensitive, and scrupulous people – do not become judges, do not stay judges, or are unhappy judges. A person does not have to file or defend a lawsuit in order to discover that the courts often contribute unnecessary misery to the world’s already adequate supply. Most of us have heard of singers, inventors, writers, and other creative people who have wasted years of their lives being distracted and iv

ruined by lawsuits of various kinds. Many of us, or our families, friends, or other people we know, have spent tremendous amounts of money and have suffered much needless pain in divorces, liability actions, and other kinds of lawsuits, or have been unfairly harassed by law enforcement authorities; and many have experienced the frustration of being wronged, visiting an attorney, and discovering that there was nothing we could do about the situation unless we wished to spend more on legal fees than the problem was worth. This is the nature of the system that employs Judge Posner. He will continue to draw a paycheck from it for the rest of his working career (unless he voluntarily chooses to leave earlier), and will do so regardless of whether the system becomes less, or more, inefficient and unresponsive. These observations would trigger some questions even if he had not expressed his views in a book. At the very least, his employment suggests that he probably has above-average patience for bureaucratic nonsense. His day-to-day activities, and the views he expresses in Problems of Jurisprudence, might have been very different if he knew more about the effects of his ideas and words upon the people whom he judges. Judges are part of the way we do things, just as the Inquisition and the Holocaust were the way that other people did things at other times in history. The acts may be different – most of the injustices facilitated by our judges destroy lives and homes much more quietly – but you can still hear the echo of wretched, medieval cruelty in our prisons, where mere kids discover that this miserable system fosters rapes and gang beatings. I don’t think most readers of this page would wish that kind of thing on a dog. Posner is a distinguished representative of the judicial establishment. I appreciate his willingness to admit his concerns about the validity of our legal system, and his interest in alternatives. In this book, I have attempted to portray those concerns and interests accurately. But I can hardly admire what seems to be an attempt, by him, to buy our trust on the cheap, by admitting a few morsels of dissatisfaction while continuing to profit from his rank in, and support of, a monstrous system.

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This Book’s Method Jurisprudence, in general terms, means the philosophy of law. Posner has many insights on what’s wrong with law and how we can improve it. That, in itself, qualifies Problems of Jurisprudence as a potentially significant document. I have tried, in this interpretation, to convey some sense of the problems he sees in this system, and how he thinks we should solve them. Readers who compare Posner’s book with this interpretation may be grateful for the much simpler language I’ve used here. I am not a scholar of jurisprudence. I saw no other scholars writing plain-English interpretations of Posner’s Problems of Jurisprudence, so I decided to try my hand at it. I acknowledge that some of my efforts to understand his book may have missed the target, despite my best efforts to figure out what the hell he was trying to say; I merely share this book in the spirit of a fellow student who shares his class notes. I sincerely hope this interpretation encourages jurisprudential experts to recognize the importance of their concepts to the rest of the world. It is unfortunate that their concepts – their explanations of our legal system – remain locked away at this time in our history, when millions of Americans are trying to understand the extreme frustrations and actions of terrorist bombers, and the failings of a system that produces tremendously expensive and ineffectual investigations and trials. For those who wonder how closely I have followed Posner’s literal words, I have included page markers in curly brackets, to allow for quick comparisons between the two books. (For example, {432} means “my interpretation of page 432 in Problems of Jurisprudence starts here.”) When I refer to a page, I am referring to a page in Posner’s book as I have interpreted it here, regardless of which page it appears on in this book. (For example, “See page 432” means “see my interpretation at {432}, which may use very different words from those that appear on Posner’s page 432, and which does not appear on page 432 of this book.”) Where my interpretation of a given page in Posner’s book seems terribly brief, it’s probably an instance of his frequent failure to realize that vi

sometimes more is less: repeating old material, beating a point to death, providing too many examples, getting lost in detail, issuing pithy retorts to fellow scholars who have criticized his previous writings, pursuing tangents that interest him, etc. The tangents sometimes take up whole paragraphs – indeed, in a few cases, whole pages – and after figuring out their point, I have sometimes had to conclude that they simply don’t have much to do with the direction of his argument. I think such paragraphs should have been edited out and reserved for a subsequent collection of stray thoughts. On the other hand, sometimes I go beyond Posner’s words in my interpretation. The reasons include the following: • In some cases, his writing style – which is sometimes trivia-oriented to the point of seeming scatterbrained – places the relevant implication on another page, and I bring it back to the place where he originally started the thought. In these cases, you may have to hunt around a bit to find the page in his book that triggered my interpretation. Sometimes the implication is there on the same page, but you have to read the page pretty closely to catch it. Sometimes his words on one page suggest additional implications in light of some previous comment. Sometimes he seems to be assuming certain background information that I have not assumed. In these cases, I try to spell out the background facts or assumptions. Finally, sometimes the most interesting things are the ones he does not say. In such cases, I try to illustrate contradictions, quandaries, or additional concerns that don’t seem to have caught his attention. It’s not that he is a stupid man, or that anyone is free from contradictions. It’s that this is not just about him. It is about the system and the approach to justice that he fosters and represents.{1}

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Finally, a brief explanation of my writing style. At the start of each chapter, you’ll find a literal quote from Posner. Other than those few literal quotes, “I” in this book is the voice of Judge Posner as interpreted by me. If any statements seem bizarre, it is because I understood Judge Posner to be saying something bizarre.

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Introduction: Where Law and Jurisprudence Started
If [readers] conclude that the ratio of destructive to constructive criticism [of law in this book] is too high, I ask them to ponder Voltaire’s reply when he was taken to task for offering no substitute for Christianity, which he had attacked: “I save you from a ferocious beast and you ask me what I replace it with!” – Richard A. Posner, Problems of Jurisprudence, page 33

Jurisprudence is legal philosophy. I like to think it’s something that lay readers can understand, though. It asks questions about law. I’ll give you a couple of examples: (1) Is “law” one thing, or just a random collection of unrelated things? (2) Whatever law is, is there anything scientific about it, or is it just politics? (3) When you get into particular kinds of law, like criminal law or free speech, don’t you start to bog down in complicated philosophical debates about things like “truth”? I sure hope these questions interest lay readers, because most lawyers and judges have no use for them. {2} I’d better mention right off that I went to Harvard Law School. At Harvard, we didn’t do much with theory. My classes were very practical. For example, we asked whether you have to touch someone before you can be accused of assaulting them. To find the answer, we used a case from the 14th century. I think you can see how practical this is. Or another example: we tried to figure out the difference between legal “substance” and legal “procedure.” Some people might think that was a theoretical question, but the professor larded it down with details until eventually it began to seem really ordinary and everyday. {3}

We’re on the third page already, so it’s time for me to use a Latin term that you lay readers might not understand. Are you ready? In media res. OK. Now, then, back to the story. This approach – using 14th-century cases, and burying legal theories in a maze of practical details – is a marvelous way of training new lawyers. It teaches them, very quickly, how the law actually works. After an immersion in this, they are trained not to ask impractical questions, like why the legal system is so retarded. The Harvard method trains future lawyers in a kind of legal logic that they’d never get in a hands-on apprentice-style method. You really learn to think on your feet, sitting in those Harvard classrooms. And how else could a young lawyer ever figure out that some words don’t mean the same thing to lawyers and laymen? Or, if you didn’t spend three years reading law books, how could you ever discover that law books don’t contain all the answers? No doubt about it, this Harvard method, used in most law schools, is absolutely the best way to train lawyers to display the extremely high sophistication that you’ve probably noticed in your local attorney. Oddly enough, however, this book will not use the Harvard method of introducing people to legal concepts. As I say, people trained in that method have no use for important questions like “what is law?” and “what is truth?” It’s not that I think they, and their high-quality legal training, have missed the boat; I’ll just spend the next 460 pages on such questions for the hell of it. I mean, these are fundamental problems, but they seem philosophical, and everyone knows that a philosopher is the kind of person who spends his time worrying about whether you can prove that no zebra has ever worn a coat. (By the way, I’ll be referring to people of both genders as “he” and “him” throughout this book. I’m not too concerned about any implicit messages that a judge might send by doing so, nor do I mean to give an advance hint of my view of the place of feminism in law.) {4} Zebra coats may seem absurd, but I confess, this philosophical stuff fascinates me. I think it can be very useful. For instance, as Bertrand Russell said, philosophy converts you from being a mere dumb ass into a person who is capable of ignoring common sense. This way, you come up with lots of questions that no one can answer, thereby freeing your mind to give up on 2

realities and concentrate instead on possibilities. Again, this is not the “practical” Harvard method, but it does teach you how to invent questions to frustrate your local know-it-all. {5} So let’s get started. Where did law begin? That, I must say, is a good philosophical question. My philosophy on the subject goes like this. Primitive tribes have rules of acceptable behavior, just like normal people. Some philosophers look at those rules and say, “See? The rules are there right from the beginning, so there must be a ‘natural law’ in all humans.” Would an anthropologist say that these philosophers are right – is that where law begins? I don’t think this is what anthropology would tell us, if I knew more about it. I think it would say that the members of the tribe have no rules until they choose judges who tell them what the rules are. Or maybe that happens later, and I’m just ignoring the original question. Whatever. Point is, these judges create “positive” law, which means that they “posit” or “establish” rules to guide the tribe. In the early stages, one person or group will wear several hats, making laws and also serving as judge; but as legal bickering creates more bureaucracy, the tribe will soon find itself saddled with all kinds of lawyers, judges, legislators, and other specialized legal parasites. The judges also change the way in which the law is enforced. Your basic primitives have the nasty habit of wanting to get even when someone does them wrong, but that’s not how it works in modern societies. No, sir. As soon as you have a judge, you have an intermediary; the wronged person is no longer taking direct revenge against the person who wronged them. {6} Granted, sometimes the judge can become the best weapon of all to help one party get even with the other party, or the judge might not do enough to help the victim. Indeed, the whole collection of legal parasites could go off on a tangent, having their own little party and forgetting all about what the tribe needs. Also, a person might ask who invited the judge in the first place, considering that he usually has no clue about what actually happened in the situation that the two people are fighting about. And then you’ve got the fact that judges are dangerous. A judge, unlike a doctor, is not there simply to help. The 3

judge is there to hurt someone; it’s just a question of who. Judges are especially dangerous to the weak, since the strong have extralegal ways to make the judge see it their way. Of course, judges try to be independent of that kind of influence, not counting those who take payoffs and those who naturally favor the wealthy because most of their friends are. {7} To guard against all these risks that judges pose, we hope there are some good, scientific rules to keep them in line. If there aren’t, then maybe the robe, the courtroom, and the Latin terminology are all just parts of a big show to disguise the fact that the law is whatever a judge says it is. But are there any such scientific rules? The short answer is, law is certainly not a science. The only thing we’ve got to keep judges in line is the belief that their decisions can’t be too weird, personal, or political. The judge has to be able to give an explanation, even if most people think it is totally bogus. Judges want to seem legitimate, so they have lots of complicated procedures to obscure their nonsense. Lawyers and law professors appreciate this, because if judges are legit, then so are they, and they can keep their monopoly on the law. {8} When law does begin to connect with the real world, there are three stages: • In the first stage, the laws say all these wonderful things, but they don’t amount to a tinker’s damn in practice. That’s how it was in Russia under the Communists. Some people say that’s often what it’s like in America now, but I disagree. In the second stage, judges become independent and are able to make some good decisions; but lawyers are so expensive that the laws aren’t worth much more than they were under the Communists. It’s not like that in the U.S. anymore, but it used to be, until about the time when I finished law school and started losing contact with ordinary people whose legal problems don’t make it into appellate courtrooms like the one I’ve been working in for the past couple of decades.

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In the third stage, law becomes sensitive. It starts to get in touch with its actual effects on people. It becomes extremely interested in the rights of the poor, in protecting people who may be wrongly accused, etc. This is where we are now. It’s a phase in which, when you start to make our legal system do what it always said it was trying to do, we are stunned to discover that the whole system is outrageously expensive, inefficient, and offensive.

I can tell you, the third phase is the best place to be if you want to kick around interesting issues in legal philosophy. {9} Speaking of which, this would be a pretty poor excuse for a book on jurisprudence if I didn’t throw in something about the ancient Greeks. Like, maybe you’ve heard of Antigone, where they argued over whether a traitor deserved a decent burial or should be punished even in death. Or how about Plato? Heavy stuff. He quotes this guy who argues that laws say just what “the powers that be” want them to say, and then Plato describes how Socrates said no, Justice is a real thing that people can tap into and that doesn’t change to suit the big boys. {10} Anyway, those are the major players in the first two thousand years of legal thought, not counting Aristotle, who we’ll get to later, and maybe some others, whom we’ll ignore. Now let me fast-forward to King James I of England in the early 1600s. James I has a rather lofty opinion of himself. He says, “Kings are not only God’s Lieutenants upon earth, and sit upon God’s throne, but even by God himself they are called Gods.” At the time in question, James has started his translators on his King James Bible project – making him an authority on religion – and now he turns his attention to the law and tells Chief Justice Eddie Coke that he, the king, is also capable of deciding legal cases. How does Coke head off this challenge? By claiming that law is an unusual kind of reasoning that you have to be trained in. According to Coke, this kind of law floats around in the minds of its practitioners and has no direct connection to everyday life. Coke didn’t dare say that law was just a collection of wise observations, because then James or any other intelligent person could work with it. So he said that law is artificial and strange, and for some reason James thought that was true.

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Coke’s view would have been totally unacceptable to Socrates. To Socrates, Justice may have been in its own world, but it was real, not artificial, and you could get in touch with it. King James believed that the king is so special that his word overrides natural human ideas of what’s right. {11} So I’d say that positivists tend to be realists, and natural law tends to go with formalism, but here it develops that positivists are hanging out with formalists, and natural law is realist. [Huh?] Some years later, Tommy Hobbes pointed out that Coke was making judges into separate little kings with the power to create rules that might disagree with those of the real king. But around 1770, Billy Black-stone decided that he liked Coke’s grand artificial legal system, and so he spent a lot of time trying to explain why that was the way it had to be. {12} Billy knew that the “common law” – i.e., the law that you get when you pile up all the thousands of individual opinions that judges have written – was full of harsh, illogical rules about tedious, everyday things; but he tried to make it look special nevertheless. Judges’ weird ideas, he said, originally came from the customs of the Germanic tribes that moved to England long ago. Back in those simpler times, people had seen God’s will more clearly. The things that judges say nowadays aren’t really new laws, he said; they’re just a transmission of the divine will through lawyers. This nonsense provoked a new round of cosmic ping-pong, with Jeremy Bentham rising up to reject Blackstone’s worship of the English courts. To him, Coke and Blackstone were just preventing improvement. Bentham said that English laws actually came from crusty old farts wearing wigs, and not from any ancient, divine roots back in the mists of time. {13} Since he hated judges, Bentham thought the solution would be to give more of the lawmaking job to the legislature. These lawmakers would crank out endless rules on everything, in plain old 17th-century English that anyone could understand. Judges would stop inventing new rules, and would instead simply apply the rules that the legislature had already dreamed up. Bentham’s first mistake was to think that an elected Congress would solve everything. (This was really just a by-product of his real goal, which was to find something – a king, a Congress, whatever – that would make as many 6

people as possible as happy as possible.) His second mistake was to think that the words of a law can capture reality, when in fact laws distort reality. No matter how many words the legislature may use, and no matter how clear they are, we judges will always need to get in there and fool around with them. {14} Bentham’s big achievement was to propose the “utilitarian” idea that, no matter whether Law or Justice are real or artificial, or come from human nature or just the whim of political leaders, the acid test is whether we produce useful results for society. That may sound obvious now, but it really wasn’t the guiding viewpoint back when we adopted the U.S. Constitution. So although we had told the English to shove off, we still followed Blackstone’s goofy old idea that we needed judges to tell us what the law should be. In part, this is because we became less excited about the idea that Mother Nature writes the law in our souls; we began to realize that in sweet old MoNa’s joint, Bambi gets ripped to shreds by a hungry wolf. At least since the deaths of Socrates and Christ, people had always seen that a judge may not know his ass from his elbow. But to me, only now did intelligent Americans stop sticking God and the ancient Germans with the blame for the nutty things judges say. Judges sensed that they needed some new pizzazz to make people think they were special, and since they were already walking erect and therefore could not take the approach used in Animal Farm, they began to wear robes – although, it must be noted, those robes did not yet have the authenticity that comes from adding gold stripes to the sleeve. {15} For some reason, the robes didn’t do the trick. People were still saying that judges invent laws from thin air. With God out of the picture, the judges needed some other source of ultimate principles that they could claim to draw upon. They decided to try boiling down their endless legal decisions, to see if they could wring any unchanging truths from them. Being judges, they didn’t all agree on exactly why they were doing this. Some thought, like Socrates, that you learn about eternal Justice by meditating on its various attributes. (By the way, the famous Chris Langdell was one of these people, and he was from Harvard.) Others believed there wouldn’t be any such thing as Justice until we had assembled enough justice-related principles to create a science 7

of law. Either way, though, judges would be serving the effort by continuing to crank out opinions about everything, from which they could then derive the necessary truths or principles. To Oliver Wendell Holmes, writing in the 1880s and thereafter, this was absurd. I like Holmes, so I’ll be spending some time on his views. {16} According to him, judges’ words don’t reflect any ultimate truths about law, scientific or otherwise. They just convey the judge’s power-oriented thinking. For instance, when I say that my words are law because the cops will beat the crap out of you for disobeying what I say, I am the very essence of what law is all about. {17} Holmes said that law’s power orientation makes it able to change very quickly to fit new realities. To illustrate this, he pointed to the fact that it took only a few centuries for people to stop trying to get even with physical things that hurt them – swearing at a hammer that hits your thumb, for example. Through the law, people learned instead to use the physical thing as an excuse to get even with the person responsible. Thus, it became possible to sue the physical thing, and so our reality-oriented legal system gave us lawsuits with names like “Joe Blow vs. Four Hammers,” where the idea was that the owner of the hammers wouldn’t be able to sell or use them until the suit was resolved. Plainly, such lawsuits were no longer a matter of revenge; we were finally able to get people to stop claiming that it was the principle of the thing and admit, instead, that they were just in it for the money, which judges can understand a lot better because, of course, they don’t always appreciate victims who clog up the courts, fighting for some principle or other. Holmes believed that the sources of power in society are constantly changing, and that judges must keep up. {18} Thus, he didn’t like to let the dusty old Constitution keep legislators from making new laws of whatever kind they wished (even if he personally considered those laws foolish). It seems he was more in touch with power than with change, though. For instance, although I constantly describe him as a pragmatist, and say that pragmatists are forwardlooking and are not bound by the dead words of the past, the fact is that he enforced people’s strict and unchanging written agreements even when the outcome wasn’t something that either party had expected. He didn’t care 8

what might have been in the minds of the people who framed the Constitution, or in the minds of those who wrote or signed agreements with one another; he just cared what words they used to express their power relationships. {19-21} Holmes saw that law includes the things that judges and legislators did in the past as well as the adjustments and creations that lawmakers will devise in the future. In fact, he said, when you’re taking a specific case to court, law for you is nothing more than a prediction of what will seem important to your judge. Hank Hart and Al Sacks admitted that this might be true, but said it’s no problem because judges are so well trained and self-disciplined when they execute their duties as judges. {22} Since that was obviously ridiculous, Ronnie Dworkin tried instead to describe specific, timeless principles that judges rely upon; but when you look at his list of principles, you quickly see that they contradict each other and leave some situations uncovered. So if law is ruling our courtrooms, “law” must mean a huge glob of politics, morals, and everything else. You may as well say courtrooms are ruled by oxygen: it’s true, but it doesn’t tell us much. {23} Maybe judges aren’t automatically wrong for applying their personal preferences, but there’s nothing scientific about that. Dworkin has lately tried to rescue himself by suggesting that judges’ timeless principles originate from the ancient legal tradition that they all share; the problem there is that a judge nowadays can now find some aspect of “legal tradition” to support almost any view. {2436} [No interpretation provided for the redundant “Preview of the Book” section of Posner’s Introduction.] {37}

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PART ONE LAW: HOW WE KNOW

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Chapter One Law Isn’t Really a Science
Law, unlike science, is concerned not only with getting the right result but also with stability, to which it will frequently sacrifice substantive justice. – Richard A. Posner, Problems of Jurisprudence, page 51

In the tough cases – the ones that pave the way for other decisions to follow – the artificial method of “thinking like a lawyer” frequently fails to provide answers. That kind of thinking is good for destroying other people’s suggested solutions, but not for creating new ones. Nonlegal reasoning may not provide a good clear answer either. So there’s no telling what the judge will rely on to find an answer. {38} Logic seems like a very persuasive tool for judges, but only because it assumes what it seems to prove. For example, I might say that Hairball is a cat and cats have nine lives, therefore Hairball has nine lives. Is it true? Well, it’s true that Hairball has nine lives if he’s a cat and if cats have nine lives, but that doesn’t tell us whether those two “ifs” are correct. {39} Logic doesn’t teach us new things; it just helps us organize the things we already believe. If you don’t mind, I’ll beat this point a while longer, with an excursion into the relationship between math and complex logic [details deleted, out of courtesy to the reader]. I belabor the topic because I’d like to share what I know on it, even though lawyers and judges generally use very simple logic, like the Hairball example.

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Judges like to use simple logic because it lets them pretend that their statements are obvious. {40-41} The judge considers them obvious because they seem to come from innate human concepts of Justice or from positive law written in law books. That’s “legal formalism.” The alternative is “legal realism.” Lawyers and judges tend to dislike realism because it requires them to stay in touch with the real world, as I have done, rather than just sitting back and using yesterday’s legal theories to answer tomorrow’s questions. {42} As an example, a formalist might say it is “logical” to treat everyone alike under the law, but a realist will notice that logic doesn’t make the judge treat people equally when they bear different degrees of responsibility for an accident. Plainly, you allocate responsibility in such cases by trying to choose the right policy, such as the policy that says equality should not overrule individual responsibility. Logic would not be able to arrive at, or use, a policy like that. Logic does decide most legal disputes, but not most of the interesting ones. {43} I mean, there’s no end to the number of silly cases that people could take to court – like whether going 50 MPH exceeds a 30 MPH speed limit – but people usually don’t even bother seeing an attorney about such things. Lawyers (especially those who come from elite law schools) tend to lose sight of this fact that most of everyday law is indeed a matter of rules and logic. Yet even in the simplest cases, logic is only part of the story. You don’t gather facts – such as proving that the driver was going 50 MPH – by using logic, although of course logic does tell you which facts seem most important. {44} And what if the test is not a black-and-white 30 MPH limit, but is instead a vague standard like negligence? There could be a hundred different facts that help prove you were or weren’t negligent. As I say, judges’ logic tends to be pretty simpleminded, so I fail to understand the role of logic when people are thinking about a complex issue like negligence. So that takes care of logic. What I find more interesting is the difference between standards, like negligence, and more specific rules. When you use a black-and-white rule (e.g., 30 MPH), you may get cut off from mentioning facts that you consider important (e.g., it was raining, the gas pedal stuck). Then again, an open-ended standard like negligence can work against you if 12

the jury doesn’t like you because you’re a damn teenager or a black or if they have some other problem that is utterly unrelated to the actual case. {45} They can just decide against you, and there’s not a thing you can do about it. When working with vague standards rather than black-and-white rules, judges often feel the urge to create and explore endless complexities within the general principle. As the above example shows, negligence can involve a million different factors. There’s no guessing what new complication a judge will perceive. So each time a judge does something with a vague standard, he makes the law harder to understand and predict. He also gives false hope to people. When they see a judge agonizing over the precise meaning of an imprecise standard, they are more likely to bring their cockamamie case to court, hoping maybe the judge will think it presents an important new kind of trivia. So laws that contain vague standards tend to encourage more legal expense and waste. Why have judges in recent years been more fond of standards than rules? Maybe they’ve gotten used to creating huge amounts of legal expense and waste. Maybe they read books like this one and think to themselves that factual complexities aren’t so important anymore because you can never be sure you’re doing a good job anyway. Maybe they have discovered that it’s more fun to fiddle with generalities than to wade into the factual complexities (see page 58). Or maybe they are less formalist (which may contradict my theory that most lawyers are formalists and my view, on page 468, of what’s wrong with legal education nowadays). {46} Not that rules are any better. If you try to use rules instead of standards, you soon find that they have their own problems. For example: • Rules and exceptions demand more rules and exceptions. {47} You can hardly help making an exception to a 30 MPH speed limit when someone is going 35 MPH to get to a hospital; but then you’ll make an exception, and punish the driver, if s/he was utterly unable to drive a motor vehicle; but then you’ll make an exception to that if the driver was only eight years old. When you get enough contradictions and exceptions, you may give up and replace the whole mess with a standard (e.g., “drive carefully”).

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A standard is not a rule because rules are precise and standards are not – except that, when rules are fully developed, we see that they have as many complexities as standards, suggesting that a standard is a rule that has been fully thought out, or a rule is just a subpart of a standard, although I don’t think so. Ordinary people can’t ignore rules, but judges are especially likely to ignore rules if they were created by another judge. {48} Rules may exist because of politics rather than because of any deep thoughts about justice. For example, why is the speed limit only 25 MPH on this residential street, when it’s 35 MPH on another residential street? Do the people who live on the one street deserve more quiet and safety than those who live on the other? The more complicated rules get, the easier it is for judges and lawyers to twist them in directions that contradict justice. Judges and lawyers don’t do that with standards. {49}

Some judges like rules; others prefer standards. I tend to think that those who prefer rules are control freaks. (One guy suggests that they need to see a shrink.) I’m not sure exactly what’s wrong with them. I think they are too uptight about the idea that law should function precisely and predictably. Their interest in rules, like my interest in standards, may not be a matter of conscious choice; it may just reflect our personalities. In a way, “rule” is not the right word for legal rules. In games (other than the ones little kids play), the rules stay fixed during the game. {50} For example, in tennis and chess, it’s the rules that make the game so challenging. They bring out the best in you. Similarly, the rules in real life can make life better: they can give you an idea of how buying, selling, working, crime, and other aspects of life are supposed to operate. When we see how the game is laid out, and when we understand what we’re expected to do, we can believe that our hard work and good behavior will pay off. But under our legal system, that confidence may be misplaced. Somewhere, a court may be changing the rules – indeed, may already have changed them,

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but you may not have heard about it – so that now the courts no longer necessarily think you’re doing the right thing. In this book, you will hear me talk a lot about stability and predictability in law, but I’m willing to sacrifice all that in order to preserve my flexibility in doing whatever I want with our legal rules. {51} I’ve gotten used to the idea that everything is crazy, that rules are made to be broken and nothing is certain. I don’t even see legal rules as being real rules anymore. To me, they’re merely guides to strategy, like “here’s the best way to win this lawsuit.” And I think that’s how it has to be. You can’t take rules as though they meant what they say. I mean, if everyone took all the laws seriously, we’d never get anything done. That’s just bureaucracy. Maybe a legal rule is like a law of science: it says what we’ve figured out so far, but it’s always subject to change. Of course, there is the slight difference that, in science, they go through extensive testing to verify that the new law works better, while in law we just let some judge make a wild guess. I offer this example from science to underscore how hard we judges try to get things right. That reminds me of another way in which law and games view their rules differently. Never mind what I just said: the people who make the rules of baseball or chess aren’t trying to bring out any special excellence or to increase the entertainment value. Nobody minds if the people who make the rules for those games get them wrong. That’s why baseball fans are so relaxed about changes in rules that have been on the books for fifty or a hundred years. Or how about another example: language. Language has rules, and many of them change very slowly. {52} Law, too, has rules that do not change – including some that should. Also, judges tend to mindlessly apply the law as decided in previous cases until some new thought breaks through and compels them to do otherwise. Thus, law is like language in the sense that both of them are capable of taking a great mistake and making it the standard way of doing things. Since we value stability in language and law, and since there is nothing really good or evil about that kind of mistake in language, there must not be anything right or wrong about terrible errors in law either. 15

I don’t deny that there are legal rules. They may have exceptions, and they may not last forever, and they may not govern the judges – but, hey, they’re still rules. {53} Fortunately, ordinary people continue to be fooled into thinking that the U.S. is a nation governed by enduring laws, not by the whims of little kings. That enhances the fiction that the rules are solid and real. So does judges’ discovery that their work is a lot easier when they just do whatever the previous judge did in a case like this. We have to let judges do what they can to save time, because otherwise they would never be able to keep up with all the work that their bizarre method of handling legal problems has generated. During the 20th century, the law has changed dramatically. In some fields, the changes are due almost entirely to changes that judges have made. A good example is tort liability, where you hold someone responsible for causing an accident. {54} Tort liability has multiplied, so that nowadays people sue for every kind of injury, big or small, accidental or intentional, real or imagined or faked, and therefore people who used to coach baseball teams or hold ice cream socials have stopped because they can’t afford the liability insurance. Why has all this happened? Maybe it’s because the law has taught the average person to blame people much more quickly and harshly than they used to. Maybe judges have gotten better at dreaming up new ideas and slopping their way through lawsuits, waving their hands over motions and briefs instead of actually reading (much less understanding) them. Maybe bar associations’ relaxation of rules on legal advertising have made it easier to find an ambulance chaser who will shake someone down for a settlement, deserved or not. Or maybe it’s just that lawyers and judges have been working hard, generation after generation, to help law gain an iron grasp on every area of life. OK, I think you can see that I’ve been talking about logic all along. My point is, none of these explanations invokes logic. We are not saying that tort liability has expanded because that was the only logical thing that could have happened. {55} Logic can show how a judge’s opinion contradicts itself, but

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that doesn’t prove that the judge is wrong. (This is easier to understand in cases where all the parties are contradicting themselves.) {56} In all this, you’ll notice that we’re talking about what goes on in courtrooms, and not about the kind of lawyer who sits in a room writing a contract. Contracts, real estate, etc. are very different from courtroom work, but that observation is not going to provoke me to wonder whether it makes sense to toss them all together in one “legal profession.” {57} Mentioning those noncourtroom types of lawyers does give me an opportunity to point out something interesting about tax attorneys, however – or no, not tax attorneys, but at least the kind of law they work with. Tax law is like a rule-lover’s Nirvana. This guy Hayek, for example, says that “the rule of law” means you need clear rules that everyone knows in advance and that judges can’t go back and change after the fact. Obviously a strange proposal, if only because Hayek is a conservative and you wouldn’t expect a conservative to want to limit the power of the government – in this case, its judges. In response to Hayek, our experience with tax law is instructive. Congress and the Treasury and the IRS are forever churning out tax laws and regulations to fill loopholes, and they actually do a pretty good job of it, but they can’t help creating new loopholes in the process sometimes (although some of those loopholes probably reflect deliberate political choices in Congress) ... I guess my point is that the whole thing is damn complicated, which law otherwise is not. Why have thousands of rules, closely tied into one another, when instead you can have thousands of cases with no clear relationship to one another? You gotta ask yourself, is this system of strict, precise tax laws better than handing the whole thing to judges and letting them make up the rules as they go along? I mean, is it? Really, that’s a good question. My response is, I have no idea. Which brings us to Joe Isenbergh. {58} He starts with a study of a bunch of tax cases in which judges ignored the specific rules and concentrated instead on preventing people from taking what the judges thought was unfair advantage of tax loopholes. Then he looks at the outcomes of these cases. On the basis of this study, Isenbergh concludes that these judges would have 17

produced better results if they had just done the hard work of figuring out exactly what the rules said and the actual facts of the various cases. This, says Isenbergh, is typical: judges find it easier, and a lot more fun, to follow lofty thoughts and try to save the world, than to focus on the details. Nobody accuses you of getting lost in trivia, or being too formal and persnickety, if you concentrate on some grand purpose that you can see (or imagine) behind all these rules. I utterly disagree with Isenbergh. Unfortunately, nothing in his arguments gives me much to criticize him for, so let me reach down and pull out an irrelevant statement that makes him look ridiculous. (Not that I would do that to anyone in my courtroom.) Are you ready? Isenbergh says judges act this way, in tax cases, because they are glory hounds. To which I respond: glory hounds? In tax law? Everybody knows that tax law is a foul and tedious area of work. Tax judges are much too far down the pecking order; they wouldn’t dare entertain fantasies about themselves or their work. {59} Isenbergh does stumble when he criticizes the Supreme Court’s decision in the case of Gregory v. Helvering. In this case, a lady went through a bunch of sham paperwork and shell corporations to create a transaction that would meet a welter of tax requirements; that done, her tax bill was much lower. The IRS said it was a joke and she should pay the full amount of tax, calculated without this sham transaction. The Supreme Court agreed. Isenbergh says the Court was wrong because the lady had done exactly what the law said. His mistake is that he’s talking as though the rules of tax law were intended to create a conceptual world of their own. How absurd! I’m not really a tax law lover, and I’m also not a great rule lover, and I suppose I have to admit that I don’t understand the mentality that would make someone think the complex tax structure is fascinating. No, to me you interpret tax law in the same way as you interpret anything else: you stop at the end of every sentence and ask yourself what this has to do with the real world, and if you can’t think of an answer, then you’re free to start cutting and rearranging until you get back to my concept of reality. There may be twenty different paper games going on in a single corporate reorganization, and maybe ten or fifteen of those paper games actually 18

accomplish something good (whether I fully understand it or not), but that’s not my problem. I have no opinion about all that. All I know is, this one paper game came into my courtroom and I don’t like it. The IRS does the best it can with the tax rules, and where they fail, I’m here to help them out and make sure nobody escapes the government’s grip. If this scares off some people who would otherwise do beneficial reorganizations that might involve a couple of paper games, too bad. {60} My attitude has political ramifications, and since I’m deep in the midst of pursuing sundry ramifications at this very instant, let me tell you what I think on that subject. Legislators make laws, but they can’t anticipate every situation, so sometimes the judges have to fill in the gaps. The legislators don’t really have an alternative, so I assume they have no problem with the fact that judges are changing vast areas of the law. Anyway, the only time judges make up major new rules is when they’re dealing with groundbreaking, trendsetting new cases, which are defined as cases in which we make up major new rules. {61} Once the rules are laid down, judges don’t need to make up new ones anymore. They can just implement the rules they made up previously. So in the vast majority of cases, we’re governed by rules made up by arbitrary authorities, rather than being governed directly by arbitrary authorities. This is the rule of law in America. Extreme liberals freak out at the thought that the whole thing is not just a structure of rules, which would give us more insulation from arbitrary authorities, but you can never achieve that ideal – especially when people like me are cutting into the rules at every turn. Instead of having that ideal, you’re always somewhere along the spectrum between having endless rules or giving judges endless freedom to decide whatever they want – except in tax law, where judges have endless rules and endless freedom to ignore them. Plainly, I come down on the side of giving judges lots of freedom – wouldn’t be a judge if I didn’t – but I would also like to say a word on behalf of formalism. Having lots of rules is important in math, logic, and science. I sure want to claim that parts of my approach are scientific, so I won’t be criticizing rules per se. It’s just when you take the approach that works in

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math, science, and logic, and try to bring it into law – that’s when I think formalism is overdone. Speaking of science, let’s get back to that. Science is what we use when logic doesn’t give us answers. The difference is that science bases its rules on the results of experiments in the real world. {62} Law needs to be in the real world too, but law is in a different part of the real world from science. Science takes time; it requires careful attention to detail; it hasn’t yet provided precise answers to every question; and it requires you to change your views as soon as you’re proven wrong. Clearly, science does not have much in common with law. Besides, lawyers and judges don’t really understand scientific inquiry, and politicians have set up the whole legal system in a way that has nothing to do with science. So if you were going to have a scientific legal system, you’d have to design it differently. You might start with scientific lawyers who study and refine scientific rules about law. For example, they might try to understand what happens when certain kinds of people sue one another. Then you’d have engineer-type lawyers who would put these discoveries into practice. They’d be adapting legal procedures to take account of what our scientific lawyers have learned about these various kinds of lawsuits. And then there would be consultants who study how well we did in trying to implement the theory. {63} The kind of lawyer that would interest me most, in this sort of system, would be the engineer types, who would get to work with a mix of theories, people, and practical problems. They’d probably resist quick changes in the law because, like real-world engineers, they’d feel more comfortable with familiar technology than with some new, experimental thing. Like an engineer, my kind of lawyer tries very hard to avoid mistakes, at least in the rare case where the client can afford to pay the lawyer as much as it takes to get it right, and where the judge can allot all the time necessary to understand the whole thing properly. Let there be no mistake about the importance of these practical, engineer-type lawyers. As everyone knows, a scientific mistake about the atomic structure or behavior of a certain building material could mean catastrophic failures for 20

buildings around the world, which is not nearly as important as the risk that an engineer who builds one building could cause a collapse if he does it wrong. In the same way, the academic side of this imaginary, scientific legal profession would not be nearly as crucial as the things that grunt attorneys would do in their daily courtroom grind. I’m dabbling in the academic stuff here in this book, but I think you can see that I’m really the practical kind at heart. In engineering and in law, the logical, academic types don’t really appreciate us practical types, and so you almost never find them agreeing to become federal judges. I may not have mentioned this, but I like to dabble in economic theory. Others may call it the “dismal science,” or pseudo-science, but don’t let them kid you. Economics is a real science. In fact, it’s the area of science that is making the most progress toward converting law into a science. (I happen to have published a few books and articles in that very area.) But even though economics is a real science, it’s also an immature science, and besides, law resists change because too many judges prefer the status quo – so I guess the truth is, economics won’t really be making tremendous changes in law anytime soon, although I also think it already has. I don’t exactly know why I keep using the example of engineers, since economics doesn’t have them. But let me just say that law has very little in common with engineering. Law’s methods are byzantine, its progress is hard to detect, and we often can’t analyze the results very well. Engineering is not a science, but law has the same problems when compared to science too. So I hope you understand that my reference to an “engineering lawyer” is a bit hokey. {64} We shouldn’t try to make science sound perfect. It has several drawbacks: • • Logic is much better than science, in the sense of being more exact. Scientific theories are often unprovable, and some that everyone thought were right have turned out to be mistaken. I don’t like the possibility of being wrong like that. {65}

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“Science” is a word that people apply to a huge variety of very different activities. It’s almost meaningless to call them all “science” just because they all use the scientific method, which is very different from the legal method, whatever that is. Science is unable to persuade millions of people to give up their key religious beliefs. This may say more about religion than about science, and few thinkers consider this a big problem for science, but I thought I’d mention it. Science likes to support theories with evidence, but the evidence can support other theories too, and even though one theory usually turns out to have stronger evidence than another theory, you never really find absolute certitude. It’s not easy to get comfortable with the thought that you might have to choose a theory just because it’s simple and it explains things. Not every scientific experiment is perfect. {66}

And yet, despite all these shortcomings, science has significantly reduced dental pain. Science is for real, and the things that it has done for us don’t just vanish the minute we think of a better theory to explain what’s going on. {67} We could say that some legal truths (e.g., that murder is wrong) are more established than many scientific truths. But overall, the “epistemology” of law – the way in which we can be certain that we actually know legal truth – is much weaker than the epistemology of science. Getting lucky with an occasional insight isn’t good enough. I want to be like a scientist: I want to be able to use cool science toys to modify or control things about America instead of having to just sit back and talk about them. If you follow the old philosophy of logical positivism, this is the end of the line for law. {68} According to that philosophy, if a statement is not true by definition, and is also not proved true by scientific observation, then it’s a waste of time. Of course, philosophers have pretty much rejected logical positivism, but it’s a simple philosophy that I understand, so I thought I’d mention it.

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Another simple idea is that science is not perfect, and neither is law, so if we’re going to keep science around, we should keep law too. For that matter, we may as well keep anything that’s halfway useful, even if it hurts tons of people and costs more than it’s worth. {69} Jackie Cohen tries to beef up this line of reasoning by saying that law and science are actually somewhat similar. But you can’t hide the fact that scientists use precise instruments to test competing theories in controlled experiments, and they don’t get confused by the difference between what ought to be and what is. {70} It’s not good enough to observe that both lawyers and scientists try to find simple explanations that apply to a lot of different kinds of situations. You could say the same thing about ministers. They, too, like to boil down complexity into simplicity (e.g., “Jesus saves”); and like lawyers, they are ordinarily not interested in testing their ideas in the laboratory. Really, the only way I think law could become anything like a science is if lawyers and judges asked themselves how their grand legal theories actually worked in the daily world. All you’d need is a desire by lawyers and judges to make this kind of change. Unfortunately, for reasons I’m about to explain, I don’t think it will ever happen. {71}

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Chapter Two Sometimes Law Is Like Common Sense
The trappings of judicial authority – the robe, the elaborate deference, the solemn rhetoric, and so forth – are clues to the political nature of that authority. Another clue is the doctrine of precedent itself, which in one sense is a refusal to correct errors – a posture that would be thought bizarre in scientific inquiry – Richard A. Posner, Problems of Jurisprudence, page 82

Law clearly doesn’t reach its conclusions by using a scientific kind of pure reasoning. But I would still like to think that law must be based on some kind of reasoning. So let’s try the approach that says law uses, not pure reasoning, but rather practical reason. What is practical reason? Anyone can see that law is not based on common sense, but let’s ignore that. Let’s say that practical reason is common sense; it’s the ability to come up with ideas and solutions you can’t prove in a way that would satisfy a scientist. {72-73} And let’s also say that practical reason includes anything you might use to explain your thoughts. This is, of course, an offense to common sense, which never claimed to embrace every random thought. Some people’s lists of mental influences might include Satan, cocaine, and testosterone; but I was thinking more along the lines of imagination, experience, and metaphor. So practical reason is an ability to reason in a way that I would consider sensible. If we could do a quick mental test, where I would quiz you on the thoughts that led you to a conclusion, I might decide that you do use practical

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reasoning, and then we could talk some more about practical reason, which I now propose to do. Practical reason, as I envision it, is a half-assed assortment of tools that serves as the source of almost every explanation that makes sense to me. By contrast, science and logic are mostly just clean-up activities where you go back and try to prove some weird idea that came to you through the random process of practical reason. For judges in particular, the basic idea is that they reach their conclusion first and then go back and invent excuses for it later, preferably without spending as much time as it would take to be sure they got it right. {74} Judges are actually pretty good at this. Sure, they can’t always use math and science to explain their decisions, but there’s still a chance that their decisions are correct. Think, for example, about the statement that Joe Blow inhaled a telephone pole. Most judges will realize that it probably didn’t happen. Of course, the judge’s job rarely involves such obvious untruths, but at least we can count on the judge’s practical reasoning for this much. {75} Here’s another example that has nothing to do with real-life courtrooms. Let’s say a person tells you that he doesn’t think things continue to exist when nobody is looking at them. I know the answer to this one, because I’ve read philosophy. The answer comes from Bertrand Russell, who said that if the cat wasn’t there during all those hours when I wasn’t looking at it, then it sure managed to work up a hell of an appetite in a few short moments of existence. I also know the answer to use if anyone ever tries to tell me that they don’t have a mind. {76} The answer is, I am pretty sure I have a mind, and I see how this thing that I call a mind makes me act, and I see you act in similar ways, so I guess you probably think you have a mind too, and in a civil society I have to take your word for it. What I’m really trying to do here is show how much better it is to use common sense – I mean, practical reasoning – than to get bogged down in the logical problems that keep philosophers busy all day. I tell you, logic and science ain’t what they’re cracked up to be. 25

So now that I’m warmed up, let’s talk about whether it’s wrong to burn babies. Art Leff says I can’t prove it’s wrong. I say Art Leff can take a hike. Who needs proof when you’ve got a gut instinct? The problem with proof, you see, is that it always has to start somewhere. A philosopher might try to prove that you shouldn’t burn babies by explaining that it all ultimately depends on your theory of God. I say, uh, pardon me, but I think it all ultimately depends on whether you should burn babies. {77} As long as the examples are extreme, there’s nothing to think about; you just do what your gut tells you. Of course, if the gut of the person tells him to burn babies because the babies happen to be Jewish, I’ll be a good deal less impressed with practical reason; but that’s another story. So maybe the judge can use his practical reason, instead of science, to answer some legal questions. Granted, this “practical reason” is the judge’s personal grab-bag of problem-solving tools, but that doesn’t mean this approach depends on the judge’s individual personality, mood, or politics. Oh, maybe it does sometimes, but not usually. {78} Sure, there are studies showing that judges often decide cases randomly, but those studies are misleading, for two reasons: • They’re based on cases that judges decide at trial. You can tell a case in which the law is not clear – those are the ones that go to trial. In other words, the only difficult cases for judges are the ones that they actually have to decide. It’s OK for judges to decide difficult cases – i.e., trial cases – randomly. The studies limit themselves to published decisions, which I believe are usually more complex, and often to Supreme Court decisions. For one thing, that unfairly excludes important decisions by other judges – me, for example. The studies should not limit themselves to such published decisions, which tend to be the most important ones.

The whole problem comes down to this: how do we explain our decisions in those few really tough cases that lay out the pattern for all the others? Of all the tools of practical reason, judges justify their conclusions especially on grounds of authority and analogy. {79} 26

Authority We like to think that we rely on science rather than believing what people tell us, but how many of us can prove that the earth revolves around the sun, rather than vice versa? We accept this, and a thousand other ideas like it, not because we can prove it, but because everyone (especially the scientists) tell us it’s so. That is authority. But it’s not legal authority. In law, authority doesn’t mean being right. It means that a higher court has reached a decision on this issue. Judges defer to the decisions of higher courts partly because we judges on higher courts tend to be brilliant, but mostly for the simple political reason that we are higher up the chain of command. The higher court can reverse the lower court. For example, the Supreme Court can reverse me. But not because they are more brilliant than I. {80} If there were another court above the Supreme Court, that court would reverse the Supremes about as often as they reverse me. It’s not that I really was wrong; it’s just that the coin landed heads instead of tails. One reason why the Supremes are often wrong when they reverse me is that they cast their votes for reasons that have nothing to do with the case. A unanimous opinion against me might just mean that the ones who disagreed didn’t bother saying so, or they didn’t really care one way or the other, or they were trying to get along with a fellow justice who had a strong opinion. {81} When you understand this, you can see there’s no good reason for a lower judge to say that a higher court opinion forced him to reach a particular decision. Some people might say that there’s actually order beneath the chaos. Sure, you’ve got lots of courts disagreeing with each other, but the natural human tendency is to jam all those disagreements into one giant “web of belief,” ignoring or resolving contradictions instead of trying to sort everything out in logical, black-and-white terms. This theory says you just try to reconcile new ideas with your core beliefs. The problem is that I don’t think we even have any core beliefs. At least not if you ignore beliefs themselves, some of which we hold dear, and think only in terms of Supreme Court decisions that stand 27

for various beliefs. We can abandon old SC decisions, and therefore we can abandon old beliefs. {82} As noted earlier, there are lots of clues to the fact that legal authority is political, not intellectual: the judge’s robe, the requirement that you kiss his ass, etc. The public expects the judge to be a political leader rather than a leader in wisdom. Thus, judges can insist on behaving stupidly, year after year – refusing, for example, to go back and fix obvious mistakes – and yet they think they will still get the same political respect. Some rules will stubbornly refuse to change when they should, because judges like me think that rejecting truth makes society more stable politically. {83} We believe in democracy and in promoting people and ideas that prove to be the best after rigorous testing. That’s why our law ultimately rests on the power of the state to make you say and do what it wants, not on the power of curiosity, nor on the strength of ideas. Sometimes, you have a whole string of published cases taking a stupid position. What happens is that lawyers know the law is stupid, so they keep bringing lawsuits in hopes that, this time, the judges will give up on an absurd rule that they’ve been foisting on the public for all these years. To contradict what I just said about the “web of belief,” there are core beliefs that all lawyers and judges agree on. For these beliefs, widespread agreement in law is similar to widespread agreement among scientists: it provides a basis for authority, a reason to say, “I take this view because it’s the accepted view.” Yet again, there is a difference between law and science. When scientists agree on an explanation, it becomes part of their foundation, and they move on to other questions. Lawyers and judges may have core beliefs, but they’re not the kind of core that make you think we’re actually learning more about law or creating a foundation. {84} Or at least there’s no core or foundation in cases, like abortion, where we can’t seem to reconcile two diehard opposing points of view. Or maybe there are two opposing cores. Whatever. The point is, if I can’t think of a solution to that kind of problem, I don’t ask myself whether maybe it doesn’t belong in my court; instead, I conclude that it can’t be solved, and I tell everyone that they will just have to wait until the day when it no longer bothers us.

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I know I’m still talking about differences between law and science, and that this seems like it should have gone in Chapter 1. But I just remembered this other point, which is that, unlike judges, scientists get to choose what they’ll study. Except for the scientists who must earn a living, nobody forces them to study things that don’t interest them. So scientists can choose to ignore tough questions. Also, there are questions that fall outside a given scientific field, and nobody studies those. That’s how science works. But not law. Judges don’t throw out cases that don’t interest them, and they don’t blow off arguments that are hard to understand. Time for another head trip. Philosophers used to think that you define a word, and this tells you what it means, and once you have that, you understand something about the things that the word refers to. The problem with this view was that if you change the definition, then you’re not talking about the thing you were talking about before. So the “moon” that people used to think was a god would not be the same moon as the one that we know is made of rock, and therefore we would not know anything more about the moon (viewed as a god) than people did a thousand years ago. To replace this concept, philosophers now think it’s a two-way street, and the meaning of a word can be the cause as well as the consequence of its definition. {85} So when we talk about the moon, we’re still talking about the same moon; we just happen to think different things about it than people used to think. So now let’s consider Dave Brink’s idea that we may say different things about a legal concept, but we’re all talking about the same concept. The theory of evolution proves this wrong. There weren’t any people who talked about evolution 200 years ago, when the Constitution was written; but if there had been, they would have meant something different than we do. This shows that someone talking about “cruel and unusual punishment” nowadays means something entirely different than what people meant when the Constitution was written. The theory of evolution is an example of scientific reasoning, and I can apply it to law to demonstrate that scientific reasoning is not like legal reasoning. I’ll grant that a real science, such as economics (did I mention that I like economics?), can detect monopolies and other true and enduring objects of study, and can teach law how to work with them more scientifically; I just 29

don’t think the same is true for psychology or sociology or whatever field it is that would be interested in studying cruel punishment. This brings me to Tommy Kuhn, who inspired the idea that there’s no such thing as scientific progress because, when we think we’ve learned something new about the same old thing, like the moon, what we’ve actually done is learn something about something new, like the moon as a chunk of rock rather than as a god. For people who still think of the moon as a god, our insights are irrelevant; we’re not talking about the same thing anymore. Does this Kuhn-inspired theory make sense? I don’t think so. {86} There’s just the one moon, and science knows it’s not a god, so science knows things about the nonexistent moon god that the primitive moon worshippers didn’t know. We can tell that law is not like science in this way. No matter how much science learns about cruelty and punishment, there will never be a way of defining it so as to persuade a Hindu widow that she should not burn herself up on her dead husband’s funeral pyre. I know, this is not a punishment, but you know what I mean – right? Analogy I’ve been saying that authority is a lousy excuse for judges to rely on when they’re trying to explain their conclusions. Therefore, for most lawyers, the other primary method of legal reasoning – analogy – is pretty much what legal thinking is all about. Without it, there is no difference between “thinking like a lawyer” and thinking like anyone else. {87} Lawyers do rely on logic to rip things apart, but logic doesn’t help you come up with anything new and constructive. So when lawyers have to do some original thinking, they use analogy to borrow from other people’s experiences and imaginations. Aristotle bestowed his blessing on this kind of reasoning, so you know it’s OK. Then again, Aristotle sort of mucked it up. He gave an example about war between Athens and Thebes. You could interpret his example as being pure nonsense; but to save Aristotle, I prefer to read it as a bit of “induction,” in which you start with observations and work your way up to a theory that explains these observations. Induction is pretty cool. For example, I rely on it when deciding that a Volvo is the right car for a person like me. {88} Here’s 30

how it works. I bought a Volvo; it worked pretty well. I bought another Volvo; it worked well too. I still wasn’t sure, so I bought another Volvo – and you know what? It worked pretty well. These experiences tell me that, if I buy a Volvo, it will probably work pretty well. See? Induction ain’t difficult. That’s why lawyers like it. Since lawyers would seem brainless if they just relied on this kind of simple reasoning, we ought to try to transform it into something more impressive. Maybe, by using analogies from past experience to arrive at conclusions about future experience, lawyers are actually engaging in good, solid scientific induction. As noted on page 69, there are some similarities between the ways in which lawyers and scientists decide to reject previous findings. Unfortunately, there is also a major difference. Scientists don’t say, “I see what previous thinkers have figured out on this subject, but I don’t like what they’re telling me, so I’m going to ignore them, or pretend they’re different, or change them.” Judges do that all the time; they, unlike scientists, can say, “Here’s how I think it should be.” {89} Induction is problematic anyway, for both scientists and judges, because it’s not reliable unless all important factors are the same as in the previous situation; in the interesting legal or scientific cases, it seems like there’s always some pesky difference between the new problem and the old ones. A lot of lawyers’ analogies aren’t true analogies. If a lawyer says that an auto accident is really like a day at the beach, your tendency is to say, “No, it’s really not.” If the lawyer nevertheless brings you to see some similarity between the two, it would seem that he has merely identified a common feature of two very different experiences. The focus is now on the common feature, and the lawyer needs to show why this feature calls for the same response, no matter whether you’re strolling along the sand or pinned inside the wreckage. The experiences are too different to say that the one tells you what to do in the other. So as you’re lying there in your crumpled Ford, you might think to yourself that the blood running down your face feels good, like the warm water in a tropical sea. It’s grotesque, and you’re probably delirious, but, hey, it’s a comparison, and who’s to say you’re wrong? Maybe this is how judges decide: they take a little bit from this old case, and a pinch from that old case, 31

and they mix it into a big stew. I guess if we change the definition of analogy in this way, then maybe you have an analogy, and maybe even some cockeyed form of induction, every time a judge makes comparisons between two things. But if this is reasoning by analogy, and if that’s the core of “thinking like a lawyer,” then I’m afraid I haven’t done much to bring legal practice above the level of idiotic babble. Let’s be clear about one thing: I, the judge, am the one who decides which old case to use as a source of analogy. The case itself doesn’t tell me to use it or not. I could just as easily choose another old case instead, if it suited my fancy. But we can still call an old case a “precedent,” because that just means “something that happened previously.” On this basis, I can say I’m relying on precedent no matter which old cases I favor. {90} Once again, we see that the judge is free to pull just about anything from his grab bag. Like a military staff officer, theory isn’t much help to him; he gets most of his guidance from BBC (Both Butt Cheeks). Judges love this. {91} They basically reserve the right to decide the present case in a way that disagrees with a previous case, and by implication reserve the right to mentally re-decide that previous case. You start every new case by asking whether all previous cases were wrong or irrelevant. In the process, you imply that the legal system is not really a great store of wisdom that might have some valid reason for telling people how to live their lives. Analogies may give us perspectives that make a problem seem simpler, but they don’t take us down into its inner workings; and without that deeper understanding, we probably won’t be able to persuade someone that our analogy is better than theirs. For example, when religious people base their concepts of God on analogies rather than on genuine knowledge of his nature, they set themselves up to fight endlessly over which analogy better explains his reaction to a given situation: is he reacting like a loving Father? like a curious Tinkerer? or like an angry Judge? {92} An analogy can be emotionally stirring; it might even show new aspects of a problem; but if a judge wants to solve a problem, and to do so correctly, and to be able to explain why he is right, then it won’t be enough just to manipulate the audience’s feelings with analogies, because someone else could just as easily

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come along and manipulate those feelings in the opposite direction. Manipulating truth is the lawyer’s job, not the judge’s. People sometimes say that analogies are like small “steps” in genuine reasoning. You might use one analogy to explain the first part of a problem, and another analogy to explain another part of a problem, etc., and in this way you gradually close in on the whole problem. Yet how do you know that you’re right in taking any of these little steps? If you’re going in the wrong direction, a small step may be better than a large one, but they might also make it easier to travel a long ways before realizing you’re wrong. {93} So why would a judge cite previous cases to justify his decision of a new case? Several reasons come to mind: to make people think this decision follows in an established rut (even if it is actually introducing a very new and different approach); to conceal the fact that the judge is just making it up as he goes along; to pile up a lot of unnecessary extra support for the points that nobody seriously doubts, in hopes that some of it will rub off on the judge’s more questionable ideas; or to drag useful words out of those previous cases (while ignoring other old cases that flatly contradict the chosen words). Analogy is not actually a form of reasoning (although I’ve been calling it “reasoning by analogy”). First of all, it can be enthymematic. I bet you won’t find that word in your dictionary, but it applies to arguments in formal logic in which one premise is implicit. I don’t like logic, and therefore I am using its concepts to point out a problem with analogy. The problem I am pointing out is that, although an analogy is not an argument in formal logic, and does not have premises and a conclusion, I think it could have a premise. {94} Let us not downplay the significant influence that previous cases can have. Let’s say you’ve got a trial. The judge may sit there and listen to both sides’ experts; but then the judge may ignore the experts and follow what the previous judge said on the subject – even if the previous judge was no expert on it either, and even if the situation has changed markedly since the previous case. There’s some laziness and some stupidity in this judicial habit, but there’s also a desire to insulate law from the constant changes that occur in a genuine search for truth, such as in science. This may be the best we can do, when so many judges don’t know enough about a field to ask simple 33

questions and see problems with previous decisions. The best solution, of course, would be to find judges who actually knew something about the things they judge. {95} Along those lines, some people say it might be OK, sometimes, to rely on an engineering expert rather than the opinion of some previous judge, but that in any event I shouldn’t rely on moral or political experts who disagree with American traditions. I’m not so sure. Assuming my preferred countercultural moral expert would be an approved historical, European dissenter with violent tendencies – say, Karl Marx – rather than a disapproved recent, American one like the Unabomber, I think it’s worth letting these guys speak up occasionally, so as to inject some new 150-year-old DNA into the moral and political gene pool. I do enjoy dabbling in offbeat ideas once in a while. But let there be no doubt: I still firmly believe in insulating the establishment from upheaval. So I’ll continue to favor relying on a previous judicial opinion rather than a more intelligent nonjudicial view (e.g., something that an engineer says). This reinforces the message that, by God, the courts are in control here; it lets people know that we’ll tolerate only so much change. (I’ll be more willing to contemplate the engineer’s view, however, if it’s better for the status quo.) Basically, we’re using previous cases as “analogy” or “precedent” only in the sense that they seem to provide some general kind of relevant information on a subject. This calls for a quick look at some other terms that describe how lawyers and judges commonly describe that relevant information. More than three centuries ago, Coke claimed that lawyers have a special, artificial kind of reasoning ability, which no one else could quite understand. (See page 10.) We’re still holding onto that fantasy. At the core of this artificial reasoning, according to some lawyers, is the ability to look at words from a previous case and decide whether those words are what the case is all about – lawyers call this the “holding” of the case, since it’s what the judge held as true – or whether, instead, those words are mere “dictum,” which is actually not as obscene as it sounds: in fact, it’s a Latin word that means “useful information that the judge provided as he was blathering on about twenty other things that were not really very important.”

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Now, on this subject of dictum, a person might ask why a previous judge would go off on a tangent instead of just getting down to the core of the case that he was trying to decide. Did the judge have lots of spare time, or what? The answer is that the previous judge thought these things were important parts of his analysis, but other judges, reading the case later, can see how they really weren’t important. This happens all the time. It’s enough to make a person wonder whether judges have split personalities: they are the detailoriented type of person when writing their own opinions, but they’re the bigpicture type when reading someone else’s. Not surprisingly, judges disagree even on the definitions of “holding” and “dictum.” As I noted a moment ago, the more knowledgeable you become in a field, by reading comic books or whatever, the more distinctions and complexities you can see in it; maybe then it becomes more difficult to detect a simple “holding” in a previous case – which would imply that if judges really knew much about the things they were deciding, they’d tend to drop this fantasy that there’s a plain difference between “holding” and “dictum” in most cases. Anyway, in my view, lawyers can ordinarily read a previous case and can agree on what the most narrow, strict, limited interpretation of that case would be. Once they do that, then I would describe a subsequent judge’s options as follows: if the subsequent judge has a case that is precisely identical on the key issue, then the subsequent judge can cite the holding from the previous case as authority for his decision in this subsequent case. On the other hand, if the subsequent case is somewhat different, then the judge has the option of interpreting the previous case more broadly. He might still claim to be relying on the holding of that previous case, but now it’s up to him to decide what the law will be, not what the law is. Or if the judge prefers, he can just ignore the half-relevant previous case and start over in this new case. This whole thing of using previous cases has a long and suspicious history. As David Hume noted in the 1700s, the courts of England functioned as follows: some lawyers would reason by analogy on one side of a case, and other lawyers would reason by analogy on the other side of the case. After a certain point, it would be impossible to say that either side was really correct. 35

The judge might then have to decide huge issues based on tiny (possibly imaginary) advantages favoring one argument over the other. Ed Coke said this was the “artificial reason” of law at work (see page 11); if so, artificial reason must just mean the ability to dream up excuses for what your client has done. Either that, or artificial reason is a fruit of collective mind, as expressed through the net effect of lawyers and judges working together, rather than the contradictory and trivial arguments of individual minds. {96} Our narrowest possible reading of a court decision cannot take account of policies that we haven’t even yet imagined or assumptions that we aren’t yet aware we’ve made. So the narrowest possible reading in the future will probably be narrower than the narrowest possible reading at present. Thus, although I speak of the “narrowest possible reading,” there’s really no such thing, and the phrase makes sense only if you share my assumption, or hope, that nothing will change. If the judge reads all cases narrowly, then he will need some kind of broad standard to tie different cases together. But if the judge is allowed to disregard distinctions and read cases more broadly, then the cases start to overlap one another, and you may not need the putty of a standard to fill in the gaps between them. Myself, I often prefer to read cases broadly because that provides more political cover for the ideas I invent in my decisions, and then I double my fudge factor by also reserving the right to use flexible standards rather than strict rules. {97-98} I’m most likely to read a previous case narrowly when I want to explain why the current one is different. For that purpose, there’s no end to the number of excuses I can fall back on. I don’t know of any logic or analogy that provides intellectual justification for all this; it’s just my political choice. A key factor, for me, is that every time I disregard an old case, people think the law is changing – and that encourages them to bring new lawsuits in an area of law that may previously have been quiet. I have no real desire to see more people bring sincere complaints to court; it makes a lot of extra work. Like I say, I favor the status quo. To sum up, lawyers and judges mistakenly tend to treat previous cases as authority rather than merely analogy. In an authority-based situation, the first 36

court lays down the general outlines of the law; but where analogy is the driving attitude, you can easily disregard a previous decision. The most important decisions are the later rather than the earlier ones. From my perspective, favoring analogy over authority, it seems like judges should be aware that previous decisions are primarily a source of information rather than a clear guide. If more judges realized this, maybe they’d be more willing to look beyond the law library for information on the best way to decide a case; maybe they’d stop basing their “insights” on the bias, unquestioning ignorance, and self-satisfied moralizing that floats around in previous judges’ decisions, and would instead invent their own new forms of bias, ignorance, and moralizing. The Socratic Method What does the student learn from the so-called Socratic method of teaching, used in many law school courses? Much of it involves reasoning by analogy, which is pretty easy and everyday when you compare it to the precise and rigorous thinking that goes on in a discipline like statistics or logic. {99} The Socratic method trains law students to recognize contradictions, and therefore makes the study of law seem very analytical, at least until you realize that there are always lots of contradictions in the complex, uncertain situations that law deals with. If we didn’t have the Socratic method, law students would probably have to become apprentices to learn the same stuff. I was never a legal apprentice, but I know that apprenticeship wouldn’t teach students as well as law school does. At the same time, I must admit that law school itself tries to be like an apprenticeship: • It imitates the experience of having a more experienced lawyer grill you with tough questions in front of an audience. Or at least it does this in the classes that actually use the Socratic method, which may occur primarily in the first of the three years of law school. This is actually better than an apprenticeship, where you could choose to train in exactly the kind of practice where you hope to have a career. Instead, you come out of law school and hear the lawyers complain

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that law school doesn’t teach what a person needs to know to practice law. • You learn how to do legal research. You do this, not by learning to use the law library, but by reading casebooks in which it’s all laid out for you. {100} Your casebook tries to introduce you to the realities of life that lurk behind neat legal decisions, but sometimes cases just aren’t the best source of information on that. (My personal favorite is the Supreme Court decision that cites Blackstone, from the 1760s, to prove that parents try to do good things for their kids.) We throw a lot of cases at law students, but maybe that’s just because we’re trying to help them cope with the flaws in our understanding of law itself.

The main thing that a student gets from law school may be an awareness of where law can and can’t be changed, and less concern about the fact that the law doesn’t always change when it should. {101}

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Chapter Three How Much We’ve Learned about Law
While it is reasonably certain that law has progressed since the eighteenth century, there is a perfectly good argument to be made – not a conclusive argument, but not an easily refutable one either – that law, taking all its consequences into account (including the opportunity costs of the human resources that have been sucked into the legal profession), has regressed in the United States since 1960. – Richard A. Posner, Problems of Jurisprudence, page 122

I said, on page 78, that authority and analogy are the two most common kinds of practical reason that you see in law. At this point, I’d like to consider some of the others. Interpretation When someone yells, “Fire!” you need to interpret what they say. You must know what the word means, and you need to decide whether the person is serious, whether they know what they’re talking about, where the fire is (so you don’t run into it rather than away from it), etc. {102} You have similar problems when you’re trying to understand a written rather than spoken communication. If anything, it’s worse, because you don’t get the benefit of the speaker’s facial expression or body language. You have even more problems when the document is old, uses weird words, or was written by a group. This is the situation with the U.S. Constitution and many other laws. {103} Generally, it’s easier to understand the words of someone closer to you in space, time, and culture than those of someone further away. 39

The greater the gap between you and the speaker, the more you tend to think that the speaker is off on another channel. {104} Thus, I find that the people who wrote the Constitution lived too long ago, in too different a world, to understand many of today’s problems, so there’s no point trying to figure out how they would have wanted to solve these problems. In Europe a century or two ago, the Romanticists would have suggested that you understand someone yelling “Fire!” by putting yourself in his shoes. The idea was that successful communication involves the elimination of barriers between people, almost as though the minds of the speaker and listener merge into one. This is not realistic. The legislators who pass laws do sometimes seem to share a common interest in achieving a specific result, but we can’t put ourselves into that collective mind and decide what it would have wanted. The only way to understand a collective mind would be to understand all the individual minds that make it up. That’s not possible. So we can’t take the Romanticist approach to understand legislation. We just have to interpret what they said and what they must have meant. {105} This is not like putting ourselves in their shoes. Cost-Benefit Analysis We constantly compare the costs of doing something against the benefits of doing it. Sometimes philosophers call this “means-end” analysis, as in, “what means did you use to accomplish this end?” {106} For example, if you discover that your Aunt Betsy has put you in her will and therefore you kill her because you just can’t wait any longer to inherit her Rolls-Royce, should you be allowed to go ahead and inherit it? On one hand, we could agree that it’s a valid will and it doesn’t say anything about your not getting the Rolls just because you happened to kill her to get it. We sure don’t want to start second-guessing what people put into their wills. On the other hand, we could say that Aunt Betsy would not have intended this result, or the legislature would have passed a law against it if they’d thought of it. The bottom line is, judges are going to control the outcome according to what they consider appropriate. Since one judge’s views of what’s appropriate are often very different from those of another judge, this promotes stability in law. {107} 40

As Vinny Wellman notes, tough cases often resist our efforts to work through them step by step and find the right answer. Therefore, tough cases must not have a right answer. We judges can be sure of this because we ordinarily devote the days, weeks, or even months that would be required to understand such cases. Then we select one solution over another not because the law requires it, but simply because we prefer that outcome. Since economics is a good source of policies, we have lately noticed more legal decisions using economic theories to explain why we guess that one outcome might be better than another. Interestingly, this seems to be happening with special frequency in the Seventh Circuit, where I am a judge. The little-known fact is that means-end reasoning is a more crucial part of legal thinking than anything else: it pulls in all of our logic, all of our reasoning by analogy, everything. Logic? Sure. Lawyers use logic to show how a certain means will yield the desired outcome. This may sound extreme, but I say there’s no other use for logic in legal thinking. {108} Likewise analogy: the only thing it’s good for is to let you decide which previous cases suggest the best outcome for the present case. Or let’s say logic and analogy are part of the standard bag of tools used by tradition-oriented lawyers and judges, who want to interpret and apply old cases. If that’s the case, I’m proposing that we should stop worrying about old cases, and should instead decide new cases by figuring out how to accomplish the goals we dream up. In this perspective, what I just said was wrong, and it’s not that lawyers do use logic and analogy merely to support means-end thinking, but they should. Unconscious Knowledge We do a lot of complicated thinking without realizing it. {109} Just think about all the things our minds are doing when they tell our bodies how to stay balanced and moving forward while we pick our way through a living room full of kids, or when we’re asleep. I say we shouldn’t talk about a person’s “mind” when so much of the mind’s work is unconscious.

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Thinking like a lawyer means developing an awareness for which arguments sound good. Learning to think like a lawyer isn’t the same as acquiring good judgment, however. You’ll find that, at a given level of intelligence, people in their 20s generally lack wisdom, regardless of whether they went to law school. (Of course, in my courtroom I give young people the same attention I’d give to normal people.) {110} You can’t tell whether someone is a good swimmer just by giving them a written test on the subject, and the only way you know that lawyers are good at thinking like a lawyer is if they’re good at practicing law. There haven’t been many studies of what makes a good lawyer. As a general observation, however, if legal reasoning is the stuff we test in law school or on the bar exam, then a practicing attorney’s ability to think like a lawyer seems to involve a lot more than merely learning to think like a lawyer. (Did I mention that I think our law schools do a good job?) Maybe legal training is like a compost heap. You can pile on the garbage in law school, but it has to rot and get churned by worms before it can become the deep, black muck you find in the heart of a skilled attorney. It’s also tough to figure out who’s a good judge, or even to agree on what makes a judge good. Scientists have no answers on the subject, and you can’t use common sense to find good judicial decisions because, for example, common sense doesn’t tell you whether you get more religious freedom if you interpret the Constitution’s “freedom of religion” words broadly. Despite the flat impossibility of distinguishing a good judge from a bad one, however, I happen to have some opinions on the subject. I find that good judges were not necessarily at the tops of their law school classes, and that people who were at the tops of their classes do not necessarily become good judges. Maybe the students who did the best in law school prefer not to become judges, because judging in our legal system is an absurd occupation or because life is easier in plush law firms; or maybe those three years in law school really didn’t have much to do with the work that judges do (such as understanding the law, appraising the difference between good and bad attorneys, and contemplating the folly of young people). {111} Anyway, it’s just as well that not all judges were top law students: those who do well in 42

law school are only one type of person, and we need screwups and other types to be represented on the bench too. Law professors like to talk as though judges are super-geniuses who work miracles. I modestly suggest that the better description is that judges are like the person picking a path through a roomful of rowdy kids: you can’t see, or explain, everything that your legs and feet and shoulders are doing at the same time, but you can usually get to the other side without doing too much damage. That’s what unconscious legal knowledge is like: it works even though we don’t necessarily understand all the factors surrounding every step we take. Yet this understates the complexity of the situation. Lawyers often horn in on political and social issues by rephrasing them as legal issues, and then judges start thinking about them – but does that make them genuine legal questions? I hope not, because once something becomes a legal question, there’s no telling what we’ll do with it. As noted above, we have no way to analyze the quality of the judge’s work. When I say that a skilled judge is like someone who can find a way through a crowded living room, I must add that we have no idea whether that is a good thing. We don’t know whether the person wandering around that living room was instead supposed to be meeting with his parole officer at that moment, or whether the living room is on fire, or whether there is any other reason why getting past all those kids deserves zero or even negative credit. In short, what we consider judicial greatness, and what really is judicial greatness, may be two entirely separate things, and we’ll never know which is which. The judge who relies on his unconscious legal knowledge is equally likely to be producing great justice or great injustice. {112-113} Ultimately the only reason for a judge to decide a case one way or another is that the judge chooses to act in that particular way – sort of like the guy in Camus’ Stranger who shoots the Arab but could just as easily not have shot the Arab, and says it wouldn’t have mattered either way. If you can become a judge with this kind of attitude, then you have probably learned to think like a lawyer.

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Time Will Tell Let’s assume a statement can be true. But which statements are true? Chances are, the ones that survive a long time. “What everyone thinks” is the only practical device we have for separating truth from fiction – or at least what we think is truth from what we think is fiction. We could have them exactly backwards, but we’d never know, since we don’t have science or anything else to test the accuracy of our commonly accepted notions. If that’s the way it is, what happens if you think something that no one else thinks? You may be right, and it may be good that you’re coming up with a new idea that will someday be what everyone believes; but in the meantime we have no way of knowing you’re right, so our “common wisdom” will probably treat you like you’re wrong. {114} In this sense, we’re always playing catch-up with the truth. Thoughtful people are leading the way to it, and the rest of us are following them at some distance, bitching and moaning and occasionally shooting at them. I am a “pragmatist”: believe that you discover what things mean by figuring out how they work in the real world. Pragmatists tend to be forward-looking people who concentrate on the truths that we’ll discover someday, including discoveries that will change everything we think we know now. “Forward-looking” sounds good, but it means we never have the test of time working with us, so we don’t really know what’s true, and it probably makes more sense for us to drop the word “true” altogether and just talk about “reasonable belief.” So I can’t be certain that what I’m saying here is true, and neither can the witnesses in a courtroom, which is why I’ve never required them to swear to tell “the truth.” Thus, the assumption on which I started this paragraph – that a statement can be true – is unjustified, and since this paragraph pretends to be full of true statements, I had no business writing this paragraph. I seem to be using the word “truth” to explain why I have my doubts about truth. This technique also works with the subset of truth known as “absolute truth.” My point, as I understand it, is that there really is such a thing as truth, but we don’t know what it is or where to find it. Since truth is thus freed from links to the world we know, there’s probably no meaningful difference between “relative” and “absolute” truth. Indeed, if truth is floating away out there, forever beyond our reach, then it’s about as useless as breasts on a beetle. We may as well call truth “dishwater,” for all it means to us. 44

Technically, then, I should invent another word for what I’m calling “truth,” so that I wouldn’t have to continue to talk about “truth” when I have no idea what it is. But with your permission, I’ll just continue using the same word, because I have more to say about various stuff that we don’t know about truth. {115} For one thing, even when the test of time does not bring out the truth, at least time allows other opinions to take root. Also, instead of thinking of truth as the thing that most people believe, we can think of it as the idea that survives when competition weeds out the weaker ones. Of course, this perspective would also embrace ideas that have survived only because someone killed all the people who believed something different. If we want to look at the situation this way, we’re probably wiser to think of truth as something that flourishes in a “marketplace” of ideas, where laws prevent violence from distorting competition, rather than in a “jungle” of ideas, where anything goes and only the nastiest survive. {116} Since we’ve failed to detect a science or methodology of legal reasoning, we’re still stuck with the thought that legal thinking is an art, like being able to walk through a crowded living room without stepping on a single kid. {117} This “art” concept makes judges’ work something you can’t criticize, because you can’t criticize the level of someone’s artistic skill. Again, we come back to the conclusion that only time allows you to separate the really good stuff from the really bad. Or not time by itself, I guess, but an accumulation of praises or criticisms by other judges, over time, who like or dislike a given bit of legal reasoning. The decisions that judges praise tend to become stable and unchanging. {118} This is good for the status quo, and I favor that, but I don’t like legal reasoning based on previous judicial decisions because then judges stay in the same rut, so that eventually their views can become obsolete, and also because the parties who benefit from that rut tend to become a political force that can keep the law from changing when I think it should. Anyway, the test of time is useless for telling judges how to write opinions on current issues – the ones that most interest people – for which not much time has passed; the test of time is mainly useful for analyzing really old opinions. {119}

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Speaking of ruts, I want to mention that having judges from a variety of different backgrounds can make our legal system less able to find the truth, as I understand it, and less consistent than it would be if all judges came from the same background; yet this also makes the system more politically stable. Then again, what really makes our system stable is not its intelligence, justice, or diversity, but rather the guns and clubs with which the cops and soldiers enforce it. Society could not survive without that kind of armed force; that’s what we need in order to avoid chaos. I really have no idea how other governments have managed to get by without being armed to the teeth. {120} Legal ideas often come back to life long after you might have thought they were wiped out. The same thing sometimes happens to artists – they struggle, they die, and then they experience a revival and become famous. Science is not like this. In science, you test a bad idea, you kill it, and it usually stays dead. Law’s inability to reach clear, science-like decisions is not surprising, considering that it accumulates all these established precedents without testing them against other, competing ideas. Since our legal system cannot reach firm conclusions about its own ideas, it often fails (as noted on pages 83-84) to resolve complex disagreements on subjects like abortion. This is one aspect of the orderly state of affairs that the cops’ guns provide for us. {121} Not to say there’s no competition whatsoever in our legal system. The U.S. has a different legal system in each state and at the federal level, and of course the differences among these various systems are huge, so you get lots of competition among ideas there. The subject hasn’t been studied much, but I bet people often apply the competitive spirit by moving to another state when they discover that the legal system in their own state is corrupt, prejudiced, or retarded. I mean, moving is easy – and just think of all the conversations you’ve had with people where they’ve talked about how much nicer the courts were in another state. You can even apply a competitive approach on the national level, by opting out of the federal legal system; all you have to do is move to another country. Also, you see lots of improvements when you compare our present legal system to the one that they had maybe a thousand years ago. For example, we 46

don’t have trial by battle anymore; hell, we don’t even tell people to put on the gloves and jump in the ring when they’re mad at each other. Instead, we advise them to hire an attorney and spend ten grand and a couple of years at it, and we liberally give them the competitive option of just stabbing the person who wronged them, as long as they don’t mind doing a little time for it. Or, as another example, we don’t prosecute people for witchcraft anymore. I grant that this is probably because science has taught us that witchcraft is a joke, but I think law should get at least a little credit for coming out of the Dark Ages on this subject. If you have any doubt about law’s ability to innovate and develop, just think of the number of new legal ideas that got adopted over the centuries and are still hanging on, and will probably still be part of our law five centuries from now. It’s not like we don’t know how to jettison foolish legal innovations: people have been questioning some of them for decades, so it’s only a matter of time before we get around to eliminating them, and then they’ll be out of the picture until they resurrect themselves in the manner suggested above. {122} All in all, I wouldn’t hesitate to say that the law has advanced over the past two centuries, although I might have to admit that it has gone backwards since I got out of law school. Let me conclude by asking you to imagine what would happen if the legal system committed itself to being practical. For each law, there would be a purpose. You’d track what was happening under that law, to see whether it was accomplishing the intended purpose. If not, you’d replace it with a better version or you’d take a different approach. Law has done this kind of scientific thing at times in the past, and it has worked really well. {123} Sadly, our legal system is not ready to be practical. Lawyers and judges are still full of hot air about lofty goals that sound great on paper but that no one knows how to measure, so we really have no idea whether we’re getting closer to them or further away. {124}

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Chapter Four Are Judges for Real?
Our government might not function if the people running it took seriously every bromide about democracy and popular sovereignty. ... [If a particular method] of judicial decision making “works” we should not lose sleep over the fact that it cannot be fitted into a neat table of organization constructed from the Constitution and democratic theory. – Richard A. Posner, Problems of Jurisprudence, page 142

I’ve explained that I dislike the idea that a judge should just apply the law and decide cases on the basis of their “technical” merits. For example, I’ve pointed out that I don’t like having to follow precedent. I think that’s just a way of avoiding other important things that you ought to be taking into account. You may as well stick your head in the sand and decide a case by the direction your butt is pointing. On the other hand, if you cut yourself free from strict, traditional concepts of the way judges are supposed to decide cases, then you’re rudderless. Anything goes, and that means it all depends on whatever the judge feels like deciding – which boils down to the proposition that judging is horseshit. But it doesn’t feel like horseshit. The judge has deep beliefs. The parties come before him and present their cases. The party with the stronger argument happens to be saying something that disagrees with the judge’s deep beliefs. You really think the judge should ignore what he personally believes and accept what this person is saying so persuasively? No way! That would mean that the judge should be open to new ideas. The better approach is for the judge to use these personal beliefs as the excuse to build new 48

hurdles in the path of this more persuasive party. I don’t advocate doing this all the time – just in the close cases (which, I have said, are those that don’t get settled before trial). {125} If it’s not a close case, then I’m all for the idea that we should be ruled by laws, not men. The reason why it’s OK to let the judge’s personal attitudes govern the tough cases is that this is what society wants. I know what society wants from judges: society wants the judge to have, and rely on, his personal views, rather than just being a disinterested, impartial referee. Obviously, if you rule out previous cases, rules, and persuasive arguments to tell us which party should win, that doesn’t leave us much to work with. So then maybe we can say, not that the judge’s decision for the less persuasive party is clearly bogus, but that most of our traditional guideposts have been eliminated, so it is merely more difficult to know whether the case was decided rightly – and then we can go bottom-fishing into the murk of the judge’s unconscious intuitions. By looking at a bizarre judicial decision in this light, you can convert sheer nonsense into an interesting intellectual challenge. If law could become a science, then we could be confident that it decided most cases correctly. {126} But law can’t become a science. (See pages 7 & 62.) Therefore, the only hope we have for being able to say that our legal system decides cases correctly is if there aren’t many cases where judges give unreasonable explanations. Then at least we’ll have the force of general public agreement to say, “See? It may not be science, but most of it seems right.” Or else you can try to get by without public agreement, as long as your cops will enforce whatever the judges say. The clever judge will probably want to be sure to honor the wishes of the political powers-that-be, at least in the noticeable cases. With that out of the way, the judge is then free to practice blatant unfairness in unimportant cases where no powerful people will squawk. As I point out on page 154, some people are aware that this is happening, but they don’t find it easy to prove that this is happening. For one thing, even the powerful players sometimes want some aspects of society to be good, so even the worst ass-kissing judge will sometimes manage to do the right thing. {127} 49

Despite all the games played by political judges, I still think they can wall off their personal beliefs when litigants are presenting their views. Speaking of the extent to which we can trust judges to do the right thing, you might have noticed that we’ve been getting much stricter about passing rules to prevent judges from deciding cases that they have a personal interest in. (I admit, these are rules, which I ordinarily don’t like, but they’re the kind of rules that evoke images of fairness, so I do approve of them.) I’m going to tell you that these rules disqualify judges for even the most minor conflicts, although the reality is that you may have to carry a snowball through hell to persuade one judge to disqualify another judge from a case on grounds of personal bias. The existence of rules to disqualify judges implies that law isn’t a science. (I know, we have already beat this point about law not being a science into the ground, but by now my editor has given up on second-guessing my impossible prose, so I can get away with revisiting my favorite topics a dozen times if I wish.) Instead, these rules against conflicts of interest imply that we can’t trust judges to hand off cases that might give them a chance to make money, get even, help a friend, or otherwise do something near to their hearts. In the old days, judges didn’t have as much power, and they tended to agree on more things, so we thought we could rely more on their internal senses of what was proper. {128} There are many reasons why it’s not like that anymore: • The political disputes are more obvious than they used to be, because judges have had to take highly visible, often inconsistent positions in controversial areas. It used to be easier for us to conceal our political disagreements behind a smokescreen of legal complexities that sounded like intelligent analysis rather than mere bias. Judges aren’t all white males anymore, so there are all kinds of different “internal senses” of what’s best.

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Society in general is more diverse, so it’s harder to figure out what society wants, although I personally don’t seem to have much of a problem doing it. We have a lot more lawsuits, raising more issues than before. The Supreme Court isn’t such a good guide to the law anymore: their cases are more difficult and they aren’t keeping up with whole new areas of law being created by judges who guide our society by the seat of their pants. {129} After the Great Depression, Americans began to get richer and more educated, which encouraged them to insist on their rights and stop bowing down to the judges who had served them so poorly. People find that, when they count on courts to do what the courts have always said they did, the courts can’t perform as promised. {130} A judge is not going to go out, meet voters, shake hands, take polls, and make speeches, and thus could never be a real substitute for a legislator on difficult issues. {131} Now, perhaps more than ever before, a judge can’t skip the legal technicalities, as an arbitrator can, in order to cut through to the heart of a dispute. On the contrary, the judge must use existing law and legal traditions to come up with at least a halfway believable explanation for why his personal views are best.

• •

And yet, despite all that, judges have incredible power. A judge, like a dictator, can make the trains run on time. The judge can give orders and accomplish things that the voters would never want Congress to do. This is what I love about our democratic system of government. {132} Of course, there are limits: judges can be reversed (but usually aren’t), if you have the time and money to spend a year or more on an appeal, and judges don’t have the legislature’s power to spend tax dollars (although they do have the power to tell individuals, companies, and agencies how to spend their money, as well as the power to take money away from one and give it to another). 51

Judges vary in their willingness to use their power to make new policies rather than merely echo policies developed by legislatures. It’s a question of whether the individual judge thinks he should take responsibility for tasks that would seem to belong to the other branches of government. There’s no law or legal principle that tells a judge to act aggressively or not; it’s strictly his choice. Let me tell you how I think judges should decide cases. (If you’ve read many legal opinions, you’ll notice that I am here indulging the endearing judicial tendency to lay out a nice, orderly, possibly even ridiculous set of procedures to solve problems.) First, although I’ve probably sounded like I don’t have much use for precedent, I do think the judge should start by making sure that previous cases don’t provide an obvious answer. For this first step, you need to avoid being influenced by your personal biases. But then, if you decide it’s a tough case, you use your biases to decide which general principle should govern this kind of case. Next, you look at previous cases again, to figure out what your general principle means. Now you go back to your principle and see if it has begun to have any practical meaning. {133} OK, then you go back to your previous cases for a third time, and since we didn’t treat them as precedent in the last cycle, let’s do that now. And that’s pretty much it. This procedure is how judges should decide cases, and it’s also how most judges do decide cases, so this is not really a proposal for anything new. Ultimately, the judge is making a political decision that should override what the law itself says. Sometimes the judge’s politics might be strongly influenced by science – for example, if it’s a case of antitrust law (where economics might be important, and where the judge might like to dabble in economics) – but it’s still a highly political process. I should mention that the nice, orderly procedure I just described does have the drawback that it will not necessarily give you a clear answer. It may just leave you with a whole range of possible answers. {134} Lest you criticize my procedure for this failure, let me repeat that there are not necessarily any right answers in tough cases. I know this because my procedure doesn’t produce many.

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Let me try again. To reduce the sense that anything goes in a courtroom, I suggest using at least some of the following (noting that some of them directly contradict what I argue for in other parts of this book): • The judge should avoid self-contradiction, except when new information demands it. In that event, judicial self-contradiction is more acceptable than self-contradiction by attorneys, litigants, or witnesses. The judge should honestly admit the basis on which he rests his opinion, even if his primary motivation is just that he had too much coffee at breakfast. Judges should restrain themselves from going too far with their opinions. They will have to decide what “too far” means. There should be rules limiting judges’ freedom to ignore previous decisions. Judges should somehow convert their complicated procedures (like the one I just suggested) to more scientific formulas. We should interpret laws and contracts precisely, rather than reading things into them. We should follow previous cases strictly. We should favor the underdog. We should encourage people to sort things out themselves, because God knows the courts won’t help them. We should develop and follow clear rules whenever possible.

• • •

These approaches make legal decisions appear more accurate and unbiased even when they’re not. They don’t remove the grey areas in law; they just make them seem more manageable. {135} There is no method of legal 53

reasoning that tells us to use legal reasoning; it’s just something you assume before you start. Since that assumption, and others, ultimately spring from our politics, couldn’t we argue, with King James, that any smart person can work with these policy issues – that is, couldn’t we appoint nonlawyers to become judges? I agree with Coke’s reply: often, the solutions to cases are obvious only to those who have been trained in law’s artificial words and concepts, whereas a nonlawyer would just look at the thing afresh and wonder why it had to be that way. For instance, nonlawyers may not share my view that law isn’t just about truth; it’s also about stability. (See page 119.) Would nonlawyers come to believe this after sufficient experience as judges? Maybe, maybe not. Should I insist on stability because that’s what the public wants, knowing that maybe the public wouldn’t want it if the public were deciding these cases? Absolutely. The difference, you see, is that legal training makes you more willing to play games with the truth for the sake of preserving stability. This is the kind of “stability” that often forces lawyers to tell their clients that they can’t be sure what a judge will decide: it produces stable outcomes in familiar cases, even if the judge must use loose and unpredictable means to achieve those outcomes and must thus make the law’s method unknowable and unpredictable. Pedigree I assume society wants the law to be stable even if it takes a lie to accomplish that; I assume that my decisions, truthful or lying, produce stability; and I assume that the stability my decisions produce is the kind of stability that society wants. These are major assumptions, and they bring us back to the question of where judges get the right to make such guesses. My reply: if this question implies that someone has to give judges that right formally, in writing, then that’s like saying that a dog is legitimate or proper only if it has a pedigree, a certified right to exist. To me, judges can make assumptions like mine – or maybe other assumptions instead – without anyone giving them the right. Their decisions don’t need a pedigree. {136} Judicial opinions can be total mongrels and bastards. 54

Basically, I don’t think people should obey the judge because the judge has an official, certified, constitutional right to tell them what to do. I think people should obey the judge because if they don’t, the cops will come and kick their ass. If the public has confidence in the courts, it’s not because the public knows or cares whether the judges are carefully applying a strictly limited and controlled authority given to them by constitutions or laws. Public confidence just comes from a general sense that the courts are fair. For judges, just like politicians, image is everything. As long as the courts can at least fake their sincerity, they can do pretty much what they want. {137} It’s better that way. Suppose the judge had to do exactly what the law said, even if he believed the law was wrong. A judge who did that would be demonstrating that we take the law seriously. He’d show that even he is subject to the laws that our representatives have worked out in the legislature. The law would be much more predictable than if you had to worry about whether the judge would change it in some weird way to fit his misunderstanding of your personal situation. The law would seem less political and biased against people who are very different from the judge. Everyone would have a much clearer idea of what to expect when they went into court. People would be less likely to think that maybe they should sue because maybe the judge will bend the law in their favor, against what the law actually says. Government in general would seem to work more precisely – no, it actually would work more precisely. For any given case, the judge’s job would tend to be easier if he could just use the law as written rather than digging around for reasons to change it. I’ve been saying, all along, that these are important factors to consider in the study of justice. But can you really imagine a judge this strict? This is the kind of bizarre person who would judge his own brother or son by the same standards that he applies to strangers. What the hell kind of judge would that be? Some people might think that everything in the previous paragraph looks good and sounds right. They might think that common sense is crying out to me, begging me to apply the law strictly and precisely. And I’m willing to listen to common sense, when it comes to the question of whether burning babies is OK. (See page 76.) But this is a different kind of situation, I think, and now I’m going to take the opposite position and tell you that I won’t 55

apply the law strictly and precisely until someone can prove scientifically that that would be better. I believe in scientific proof now, even though I don’t really have any proof that my own approach is the better one. Let me tell you why I don’t just fall in line and follow whatever I find in America’s Constitution or other old laws. The people who wrote those documents are dead, and therefore they have nothing to do with what people want today. {138} Granted, judges are required to swear that they will uphold the Constitution, but that doesn’t apply if the Constitution does not provide an exact answer. This is the only attitude that will work. We’re all going to become very impatient if our only way of updating the Constitution is to let the public have some influence through the whole congressional procedure of amending it officially. That’s too complicated. The Constitution is relevant only to the extent that it deals with what the public needs now, and that’s up to people like me to decide. When dealing with an old document like the Constitution, you don’t choose your approach according to what our system of government requires. You choose, instead, by what works best. Of course, no judge is going to decide a case in a way that he thinks won’t work. And nobody studies most judges’ opinions to see whether they actually do work. So judges decide according to “what works best,” which is defined as “what the judge decides.” In short, I think that a judge automatically finds the proper approach through the very act of choosing an approach. Any approach is fine; the only exception is where someone else examines it and points out how it’s wrong. There isn’t much published criticism of most judicial opinions, and most of the criticism isn’t scientific, but instead comes from fellow judges – and they, too, are making it up as they go along, so you can always just ignore them. {139} Judges who treat judging as a precise discipline, not based on pure practicality, are like Nazis: accept the rules handed to you by the legislature and implement them strictly. That’s warped. It doesn’t let each of America’s thousands of judges decide whether they personally think that a law produces the right results. America values efficiency, and anyone can see that letting each judge rethink laws is more efficient than implementing laws strictly. Judges who follow the rules generate bureaucracy, unlike judges who make it up as they go along. The latter make things simpler by reserving the right to 56

reconsider every question, starting with the question of whether they should follow the rules. I like the law to be stable and predictable, but not when it interferes with my freedom to reexamine the entire enterprise at will. In philosophical terms, these Nazi-style judges are “strong legal positivists,” which means they think a law is legitimate only if it comes from the legislature. They reject letting the judge’s whim take control because they’re “moral skeptics” or “epistemic skeptics” – that is, they think that the elected representatives in the legislature tend to be better than the individual judge at representing society’s goals. To me, the judge who is preoccupied with just the person standing in front of him can do just as good a job at inventing a law that applies to all of America as the 435 members of Congress can do when they and their staffs review hundreds of different cases in order to write a law that’s supposed to be guiding the courts. {140} The legislature has to realize that they can’t write a law so accurately that it will cover every situation. They just have to know that sometimes judges will ignore the wording of a law because, in the judge’s opinion, it doesn’t seem to apply to the specific case at hand. They must understand that their laws would quickly become obsolete, and would demand a fresh review, if we judges weren’t so helpful in propping them up and carrying them on for generations after the end of the problem they were designed to solve. I grant the occasional area, like tax law (see page 57), in which the legislature gets down into the tiny details; and if you take Isenbergh’s view (see page 59), you let the rules provide the answers and you don’t allow much room for judges to indulge their private prejudices; but I don’t take Isenbergh’s view, and therefore, as noted above, I think that even precise areas like tax law cry out for judges to fill in the loopholes with their own personal guesswork. In this book, I refer occasionally to Socrates and other ancient political thinkers. I admit that most of the key issues of government have been kicking around a long time, and that the people who wrote the Constitution had a good grip on those issues. But I don’t worship the writers of the Constitution. I think the core principles of good government change with each new generation. Therefore, it’s better to put control, not in those original documents, but in the hands of today’s Supreme Court, whose members may have mediocre legal skills, do not necessarily understand the fundamental 57

philosophical issues, were selected for the Court for political reasons, and often produce strange decisions. I take this approach because I believe they’re trying to follow in the direction that the original writers pointed out – and you can interpret that as vaguely as you like. {141} When you think about it, Thomas Jefferson and his fellow writers were lawyers, and very few lawyers will complain about courts becoming too independent. So I think we can safely assume that those original writers of the Constitution would have been glad to see today’s massive, sprawling court system, along with its tendency to take laws and run with them as I suggest. Indeed, this is probably the very thing they intended. We could debate the point in light of what the Constitution says, but the Constitution itself is a collection of different documents and views, and to my mind it speaks both ways on the issue. You may also be less willing to take the Constitution seriously when you think about where it came from: the people who wrote it were revolutionaries; they didn’t get and/or shouldn’t have gotten the public’s approval of it; and the North forced the South to agree to portions of it after the Civil War. This is a document forged in struggle and conflict, not in a conference room or some other setting that a thoughtful person would prefer. {142} Yet most judges take seriously this question of what gives them the right to decide cases as they wish. This is because judges tend to be formalists rather than realists. I mean, most judges, if forced to choose between caring about the pain of the people who appear in their courtrooms or feeling that they must follow the rules of law as they see fit, will choose the latter. Judges feel this need to keep tying their decisions back to the Constitution or to other old laws because they’re irresponsible: they want to be able to pin the blame for their decisions on some legislator rather than taking it themselves. (See page 49.) I don’t really mind the irresponsibility; what bothers me about this formalist approach is that it doesn’t pay enough attention to what works. Look: we can’t behave as though we actually believe the things we say about democracy and our form of government. The government wouldn’t function if government employees like me took all those ideas seriously. That’s why I don’t believe judges should try to apply the Constitution or the laws strictly. 58

Instead, on pages 132-33, I laid out a nice procedure by which, I said, most judges do and should decide cases. In that procedure, they still have to deal with the Constitution and laws; they merely have more leeway to apply their personal views. This approach works, in some sense of the word, and we’re not about to drop it. {143} We really shouldn’t get hung up in all that democratic rhetoric about the legislature. Legislators are influenced by special interests; they are ruled by poor procedures; and they care only about doing what people want so they can get reelected. In all these ways, judges are better: they don’t favor the status quo, for example; their procedures make sense to anyone; and they can concentrate on what the public really wants (which the judge automatically knows), as distinct from what the public thinks it wants. I’ll give you an example of what I’m saying. Let’s suppose the legislature passes a law, but fails to specify a statute of limitations for that law. Now a judge has to decide a case under that law. Has the statute of limitations expired? To answer that question, let’s suppose our legislatures had interpretive offices, where experts with years of experience in the legislature’s procedures might collect and respond to such questions, coming in from judges everywhere. These legislative experts could figure out the tentative answer once, for the benefit of all judges, and could also notify the legislature of a flaw in the law, thus simplifying the process of improving our laws. Or if we didn’t want to hire experts to work in the legislature, the interpretive office could farm the questions out to, say, three different attorneys or scholars who happened to be experts in the subject, and could just tentatively adopt the answer that a majority of those three experts decides, until the legislature next gets around to reviewing the subject officially. Either way, the judge could just ask knowledgeable people for the most likely answer. We don’t have anything like that, however. Nor does our legal system allow the losing party to take the matter directly to the legislature and ask them if they agreed with that aspect of the judge’s opinion. Instead, the people in the legislature, who create the law, are cut off from direct feedback on the kinds of problems that the law creates in practice. The judge (and the appellate judge, if the loser can afford to appeal) is required to figure out the statute as though the legislature has lost all interest in its brainchild. 59

In this hypothetical case that I’ve described, then, the trial judge will assume there must be a statute of limitations because, if he doesn’t, I’ll reverse him on appeal. So how does the trial judge invent a statute of limitations? Easy: just borrow one from another law that seems similar. The problem here is that there’s no telling why that statute of limitations got into that other law. It may just have been a funky backroom deal between a couple of cigar-smoking pols, like “I’ll cut this statute of limitations down to two years if you vote in favor of my proposed tax increase.” So the judge, trying to link his decision formally to some act of the legislature, is artificially inserting something that may not fit at all. It makes more sense for the judge to just invent a statute of limitations out of thin air, based on whatever the judge thinks a statute of limitations is supposed to accomplish in that particular case. {144} Something like this happened in the 1954 Supreme Court case of Bolling v. Sharpe. The Supremes had just said, in Brown v. Board of Education, that states couldn’t segregate their public schools. Now this Bolling case arises in the District of Columbia, which isn’t a state. Brown was based on state laws that didn’t exist in D.C. {145} So the Supremes had to invent a reason to outlaw segregation in D.C. like Brown outlawed it in the states. And that’s what they did. People squawked that this approach of inventing laws ain’t appropriate for a court, and I sympathize; but I also understand how the Supremes might have been afraid of causing a riot right outside their doors there in D.C. {146} Then again, some people say that courts aren’t very good at guessing what will cause riots, and anyway riots can encourage Congress to speed up the process of fixing the law in question. My point here is that maybe it’s better if the courts don’t invent laws to get them where they’re trying to go. Another example: the 1952 decision in Ray v. Blair. Although the Constitution intends the Electoral College (which chooses the President) to be independent, Alabama had passed a law requiring its Electoral College members to vote for the people chosen by their political party leaders. The Supreme Court approved this law because, regardless of what the Constitution says, people no longer have much faith in an independent Electoral College. So the Constitution still says one thing, but the actual procedure can be something different. This is practical because it prevents 60

Electoral College members from doing something that might provoke a debate about changing the Constitution, which I don’t think we want to do because that would upset the status quo. This example proves that it’s better to leave the Constitution as it is and jury-rig procedures to get around it. {147} I have an even better example: West Virginia State Board of Education v. Barnette. In this 1943 case, the Supremes admitted that nothing in previous cases or the Constitution justified their decision; but they said they had to reach that decision anyway because the Constitution just wasn’t so relevant anymore. Why not? Because the Constitution was based on the idea that government should not control our private lives, whereas in the 1940s (fighting World War II) we had joined the Nazis in believing that one’s national government can be one’s savior. {148} Even so, the Court allowed a Jehovah’s Witness to refuse to pledge allegiance to the flag because they didn’t think it helped national security very much to force people to pretend they loved the country that was making them sin against their religious beliefs. That’s the kind of practical conclusion you couldn’t get from the Constitution’s promise of freedom of religion. You need a judge to invent something if you want this conclusion. {149} Judges’ views of the political and social consequences are always important. Sometimes the best way to win a case is to forget about the law, forget about being logical, and just manipulate or avoid the judge’s hot buttons and stereotypes. It’s like converting someone to a different view of things. {150} Conversion is often a religious experience, which makes it especially relevant in the U.S., a highly religious country. Worship of the Constitution is like a religion for many lawyers and judges. {151} Really, if you got your weird beliefs in some nonrational way (e.g., just accepting what you’re told in law school), then it will probably take something like conversion rather than logical persuasion to get you to consider other beliefs. Lawyers and judges should use both methods when seeking to persuade people to get away from the Constitution. Sometimes new ideas sweep through courts across the country and change everyone’s opinions 180°, not because they’re necessarily more rational, but just because a lot of judges suddenly sniff a wild wind and start rampaging 61

off in some new direction. For example, states used to apply unfair methods to apportion representatives to their legislatures. This underrepresented certain segments of the population and overrepresented others. Until the 1950s, no federal judges believed this offended the Constitution’s equal protection clause. But by the 1980s, almost every federal judge believed it. Why? That question has been studied, but there are no clear explanations. {152} For some reason, federal courts just started getting into the issue, taking the power away from state legislatures. Most state legislatures, it turned out, were glad to see this happen. Maybe the explanation is that the courts like to grab power, so when one court saw that it could get away with doing that, others followed. This example shows how the law of the land can take a sharp lurch in a new direction just because judges like me can acquire a new viewpoint supported by no known evidence. {153} Realism I hope I have ably persuaded you that law is not entirely scientific or even rational, as a “positivist” might argue. Now I’ll turn briefly to the other extreme, and argue that law is not entirely political, as the “legal realist” or “critical legal studies” movements believe. Extreme realists say that the only reason the rich and mighty ever lose in court is that the judges are trying to cover their tracks. If judges can toss in a few opinions that seem to humble the powerful, then it’s harder for anyone to prove that they’re biased. The problem with this argument is that you can’t test it, i.e., there’s nothing scientific about it. You look at decisions favoring the rich, and a realist says, “See? The judges favor the rich!” Then you look at a decision favoring the poor, and a realist says, “See? The judge is concealing the fact that he favors the rich!” Of course, if it’s true, it’s not entirely surprising. Judges are human too. If they’re going to favor one class accidentally or intentionally, I don’t see why it would be better for them to favor the lower class (with 95% of the population) rather than the upper class (with the other 5%). Besides, I’m a pragmatist, oriented toward how things actually work, and therefore I don’t really care why judges apply the rule of law (as I’ve defined it), as long as they do it. So if they decide five percent of cases in favor of the poor because 62

that’s what the rule of law says, or just because they’re trying to cover their tracks, the outcome is the same. {154} Also, most people’s experience of law is pretty cut-and-dried, so I think the extreme realists are overemphasizing a relatively small number of cases in which politics might play a role. Law can be acceptable even if it does include some politics. A judge’s practical reasoning ability often suggests that a compromise would be best, and I think the judge can usually reach that kind of decision regardless of his personal beliefs about the case. Also, regardless of the judge’s prejudices, litigation is a useful substitute for violence (or at least some people sometimes believe it is, or must act as though they believe that when they think they can’t get away with violence). In addition, litigation helps people understand each other’s positions more clearly, especially by teaching them to dredge up every possible slander of one another. People are just as likely to find the entire process disgusting if the judge follows the rules strictly or if he instead makes them up according to his personal views. {155} Here’s an example. Mark Kelman analyzes the case of Regina v. Cunningham as follows: Cunningham stole a gas meter. When he tore it loose from the gas pipes, he caused a gas leak that injured someone. They convicted him of theft, and also of maliciously endangering life. What did “malicious” mean? Kelman says the court relied on a bogus distinction between gas meter workers and gas meter thieves. The distinction is bogus, Kelman says, because the law makes thieves guilty regardless of how careful they are, while it lets meter workers off the hook unless they’re sloppy. Instead, Kelman says, sloppiness should be the test for everyone. Theft is one thing, and sloppiness is another. We’ll punish the theft, all right, but when it comes to this question of endangering life, a sloppy gas company employee who causes a leak is exactly as dangerous as a sloppy thief who causes a leak. The problem with Kelman’s view is that you can’t treat a thief the same as a gas company employee, because you wouldn’t want to treat a sloppy gas company employee like a criminal just because he endangers life. After all, he is a corporate employee. {156} Therefore, a civil suit against the gas company is good enough because they’ve got bucks, regardless of what was going through that sloppy employee’s mind; but we must nail the sloppy thief with a criminal conviction for doing the same thing. He doesn’t have a job at 63

the gas company, he can’t afford an attorney, nobody is representing his lowclass butt in Congress, and therefore a long, expensive stretch in prison is the only thing that’s going to get through to him, although of course it doesn’t do that in most cases. Ah, but now I’ve said that the Cunningham decision was based on economic factors, and this is exactly what the critical legal studies people want me to say: that all law ultimately rests on policy decisions about economics, morals, and so forth. I’m OK with that, unless you mean that someone who understands everything about our policies, about what’s right and wrong, would be able to decide a legal question properly without knowing anything about law. Coke and I consider that impossible, because a judge has to function as a member of the legal establishment. He has to get bogged down in a thousand issues involving legal procedure, and therefore can’t always do what makes sense in terms of policy and right and wrong. {157} The error of critical legal studies people like Duncan Kennedy is that he ignores the fact that there are easy legal cases, resting on rules that politics did not create, and no amount of policy training is going to help you solve those easy cases as well as you could if you just understood the mass of arbitrary rules that govern them and the complex and often unjust political forces that created those rules. {158-162}

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PART TWO LAW: WHAT WE KNOW

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Chapter Five What Exists Outside My Head
[Judges] rarely level with the public – and not always with themselves – concerning the seamier side of the judicial process. This is the side that includes the unprincipled compromises and petty jealousies and rivalries that accompany collegial decision making, the indolence and apathy that life tenure can induce, the flickers of ambition for different or higher office (judicial or otherwise), the boredom and burnout that heavy caseloads over a long period of years can induce, the pervasive reliance ... on ghostwriters (most judicial opinions nowadays are drafted by law clerks), the isolation from normal human concerns that is experienced by people who spend all day, day after day, observing the world through the prism of law’s “artificial reason,” and the desire, conscious or not, to shape the law to one’s personal values. – Richard A. Posner, Problems of Jurisprudence, pp. 190-91

We use the word “something” in all kinds of ways, demonstrating that there are lots of different kinds of things. There are things that exist, like Chicago; things that don’t exist, like blue rubies in my two front teeth; things that consist of things, like a flock of sheep; and things that are measurements, like the temperature, or forces, like gravity. There are Socrates’ ideals, like absolute Justice, and in some real or imaginary world, there are right answers to every legal question. [Note: deleting a long, tedious list of other “things,” out of sympathy for the reader.] In short, the mere fact that we can call something a “thing” doesn’t make it real or true in this world. {163-165}

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We can say things about things. Some of our statements say something meaningful, and some don’t. If I ask you to prove you’re not just imagining all this, you won’t be able to do it. Then again, you could just say that it wouldn’t make any difference if you were imagining all this, because you’d still want (or have) to keep living exactly the same as before. If you’re imagining all this, then it might seem like nothing would really matter; but you couldn’t be sure because there’s no way to know for sure whether you are. Anyway, our experience tells us it’s impossible to carry on for very long believing that we’re imagining all this; we also suspect that people who think they’re imagining all this are crazy, or at least they don’t function very well in this world, so it’s not like we’d be dying to adopt their weird beliefs. {166167} As we naturally assume that the things we’re seeing and experiencing are real, we also assume that other people have minds, as they seem to have. There are two separate concepts of “mind.” One is a weak concept – it’s just another word for consciousness or awareness. The other is a stronger concept: it says there’s actually something in us, a soul or inner person, from which our true intentions spring. In either sense of the word, “mind” seems to be something we invent to explain things we don’t understand. A primitive person might think there’s a mind in a computer, or even in a toaster oven that turns itself on and off via timer or thermostat. When mysterious things stop being mysterious, we stop explaining them by saying that there’s a mind behind them. Maybe we also stop using impersonal supernatural explanations, like magic or fate. {168} Things Law Invents In law, a person’s intentions are often important. But “intent” and “free will” and “mind” are concepts that we don’t necessarily like nowadays. We think we have better terms for the same thing now. Let me explain why. According to Oliver Wendell Holmes in 1881, when we understand people better, we stop inventing minds, and we also stop inventing theories about what a mind must have been thinking. Someone does something really stupid; you think to yourself that it must have been deliberate, because it is not possible for anyone to be that stupid; and then you discover it really is 67

possible. You thought the problem came from intentional mental action, when in fact the problem came from a lack of mental action. Holmes said that, as law becomes more informed, it stops blaming everything on what was being thought; it concentrates, instead, simply on what happened. In this sense, Holmes didn’t care whether a dangerous thing was a person or an object; what we have to do, he said, is just try to predict and control sources of danger. A dangerous person scares me no matter what he might be thinking. {169} So law doesn’t necessarily care if you have a mind in the strong sense, like a soul; it only cares if you have a mind in the weak sense, where at least you are able to understand something. What I mean is, even when law moves away from punishing you according to what you were thinking, it still might want to punish you if you knew what situation you were in. But even there, law concentrates on your behavior, not on your thoughts: it asks how your actions look when compared to what a normal mistaken person, or a normal crazy person, would have been doing. If what you call a mistake was too far off the beaten track to be a simple error, and if you weren’t otherwise acting like a lunatic, then we probably won’t believe that you really were nuts or mistaken. We’ll think you understood what you were doing, and that you deserve to be punished for it. In this way, we are no longer getting even with the hammer that hit our thumb, but we’re still getting even with people who do the wrong thing, because we still think they have some kind of mind or thinking ability that the hammer lacks. Since we focus on behavior, rather than on thoughts, we aren’t limited to a person’s conscious thoughts. We can punish them for their unconscious impulses too, as long as they were consciously aware of those impulses. This focus on behavior rather than thoughts is called “behaviorism”; or if you want to look at it as a matter of how cold, hard circumstances (i.e., not the free will of a soul) lead up to your actions and determine what you will do, then you can call it “determinism.” Same thing. Either way, the only part of “mind” that law really needs is that you understand the law and the main facts of the situation. Understanding those two, and misbehaving anyway, makes you a deliberate lawbreaker deserving punishment. We’d say the same

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thing for a trained animal that disobeyed an order. Everybody knows that training animals involves punishing them for misbehavior. Along these lines, we can convert thought-oriented legal language into behavior-oriented legal language. I, personally, am interested in converting it into economic-style behavior-oriented language. I think this helps simplify things. {170} For example, if you hurt someone, we don’t have to ask whether it was (1) no fault of yours or (2) due to your sloppiness or (3) something you intended. An example of a non-negligent mistake (the first of those three types) might be some freak accident, like where your act of putting on your hat somehow causes City Hall to collapse. A negligent mistake would be where you should have taken more care to prevent a bad outcome; e.g., City Hall collapsed because you were busy staring at Mary Sue and failed to keep your bulldozer where it belonged. It’s intentional, of course, if you said, “I’m going to bulldoze City Hall.” We can make it economic-style by asking questions like, “What resourceallocation decisions did you make?” Normally, resources in economics are things like time, cash, employees, equipment, and whatever else might help you produce or accomplish something. In a negligence context, your resources would tend to be things like “care” or “thoughtfulness” – as in, “Did you allocate your ‘care’ resources in order to hurt someone?” (which would be intentional) or “Did you allocate your ‘thoughtfulness’ resources to avoid hurting someone (in which case, even if you still managed to hurt someone, the worst you could be is negligent). Of course, the words “to hurt” or “to avoid hurting” imply that you had a purpose in mind, which raises a question about what thoughts were going through your head. It goes beyond just asking if you knew the facts of the situation and knew that the law forbade what you did. But I think we can get back to good ol’ behaviorism by saying that “purpose” just means “what I did in order to accomplish my goal.” This may sound like different words for exactly the same thing, but what I mean is that having a “goal” or “purpose” just means behaving rationally, where “rational” means having a “goal” or a “purpose.” Oh, to hell with it. The point is, we’re replacing “hypostasized” (I think I mean “hypostatized”; if so, chalk up another one that I snuck past my editor) states of mind with hypothesized behavior: instead of speculating about what your mind is doing, we’ll speculate about how you’ll act. If you’re negligent, 69

you’ll act like a thoughtless person; the difference is that we don’t have to figure out whether you actually were thoughtless, except to the extent that we do still care what your thoughts were. As I say, we’re in the process of converting ordinary negligence language into economic-style behavior-oriented language. We’ve taken care of the behavior part; now let’s do the economics part. When economists talk about “utility,” they’re describing something a lot like “intent.” Something has utility to you, or you have an intent, if it’s what you prefer – that is, if your goals and desires lead toward it. Economists prefer to talk about murky concepts like “utility” because that lets them get away from the question of what it means to “prefer” something. Similarly, we should try to get away from old concepts like “intent” and should instead talk about new concepts like “thoughtfulness resources.” If nothing else, it sounds an awful lot more intelligent. Behaviorism says that we might not be able to measure your preferences inside your mind, but we can measure them in terms of how you express them. For example, if you like ice cream, you’ll pick up a gallon when you buy your groceries; if you really like ice cream, you’ll miss the start of your favorite TV show to make an emergency ice cream run to the local convenience store. {171} This will be true regardless of whether we’re using a behaviorist approach. Your feelings about ice cream will be exactly the same; but this would let us describe behavior instead of feelings, thoughts, and desires, which is marvelous if we’re discussing subjects in which feelings, thoughts, and desires are irrelevant. I think law is that kind of subject. It is for me – at least when I’m trying to make it sound like economics. Some determinists say that everything is a matter of blind chance, depending solely on the particles and forces that came into existence at the beginning of the universe. This pretty much kills the idea that you have a “free will” that is operating on its own. Instead, by this theory, your will– like everything else – was programmed at the outset, billions of years ago. I’m not saying that here. I say lots of things happen at random. You’ve got those particles and forces floating around, and that’s what we’re all made of, yet no one can predict 70

exactly which particles will collide, or when. Maybe even God is waiting to see how it all turns out. So maybe your choices aren’t all pre-programmed; maybe some of them are random. {172} People who have been rooting for “free will” will find that randomness is even worse than determinism. Here’s an example to explain that. People think you experience greater freedom if you make a decision because someone is holding a gun to your head – that is, if the universe is forcing you to reach only one possible decision – than if you’re standing on a beach on a beautiful day, making the decision randomly, on the basis of a flip of a coin. Choices become a lot easier when you only have one, and that’s why people don’t like uncertainty. For example, I tend to avoid choices by automatically preferring the status quo. So neither randomness nor determinism give us free will. We want to think we have a free will, so being told we don’t makes us uncomfortable. So we’re uncomfortable. You may have already known you were uncomfortable; now you know why. Maybe it’s like this. Maybe you gather information about things merely by being conscious of them; then your imagination uses this information to guess what will happen if you make one choice or another. You gather your information more or less randomly, learning some of the things that you tried to learn and also a lot of things you didn’t try to learn. Some of your information will be accurate and some won’t. You’ll reach some conclusions about this information; your conclusions will be accurate and/or mistaken. You will then decide to take some actions. Your decisions are predictable, because if you took this pile of relevant and irrelevant, correct and incorrect information and conclusions and laid it all out on a table, any rational person would understand and agree with the actions you decided to take. So you don’t really have a free choice in the sense of being able to do something that nobody else would think of doing if they had your information and imagination. In other words, another person will think exactly like you, but only if they have your mind. This is what determinism teaches us. Since nobody has your mind, and never will, what I’m doing here is creating a totally bogus imaginary scenario to draw attention away from the fact that people will not understand many of your conclusions and actions, and therefore, for everyday purposes, the things you think and do will seem 71

highly unique to the rest of us. We describe your unique behavior as your exercise of your own “free will,” not because we think you have a little node in your soul called your “will,” nor because we doubt we’d tend to think like you if modern medicine were able to make clones of your head and screw them onto our necks, but merely because “free will” is a useful shorthand way of saying that a practical person like me should know better than to try to build an entire legal theory on such an unreal, goofball foundation. To help me accomplish my mission, as you may recall, I distinguished between the “strong” and the “weak” senses of “mind.” (See page 166.) An example of a “weak” mind would be someone I disagree with. (Just kidding.) This distinction between weak and strong mind doesn’t help me get rid of mental language. As just shown, I still have to fill my sentences with weakmind words like “consciousness” and “imagination” to describe what makes people tick. The difference is that imagination, and other features of weak mind, don’t imply that a person’s mind has intentions or that it controls anything, which is exactly the nature of the strong-mind entity known as “free will.” Weak mind is just something that works with data. You become conscious of information; you imagine things about it; but it’s another step altogether to say that you form goals or intentions about it. I admit, I do like the idea of converting all mind-related talk into behavior-related talk but, hey, Rome wasn’t built in a day. Right now, let’s just worry about the strong-mind part. Or, since strong mind means the same thing as free will, let’s forget about the strong and weak mind phrasing and just go back to the words we’d use ordinarily. I think we’re beginning to make progress. The situation seems to be as follows: (1) Your imagination tells you about different outcomes, based on the information you’ve received; then (2) you make a decision. Is that free will? No, because if you’re rational, you really had only one possible choice in the situation as you understood it. Your choice might have been to act, to gather more information, to flip a coin, or whatever, but it was the same thing as anyone else would have done if they’d had your mind. {173} In short, we don’t need a concept of “free will” to explain your actions. Or, since we don’t have your mind, we will tend to understand your behavior if we just know what you want to do and how you plan to do it. Or maybe not “plan,” because that sounds a lot like a “goal.” If I may mince words a bit, let me rephrase: a 72

“plan” is really just a “belief about how I can get what I want.” I want things, and I believe action X will get those things for me, but I’m not able to form the intention to get off my butt and make it happen. (And you thought that a superior theory was supposed to explain phenomena.) Damn, I love philosophy. OK. Let’s draw another distinction. Willie Quine says that you make a free decision whenever your personal desires play a role in the decision, regardless of the people, forces, or events that have laid out the choices and circumstances you now face. Thus, people who talk about “free will” do not necessarily mean political freedom. In the standard use of the term, you can have free will even if you’re in prison, or paralyzed from head to toe, because you’re still human and free will is supposedly part of being a human. Similarly, in my terminology, a paralytic can gather information and form conclusions. In fact, so can a rat in a cage, or a worm. They all have some tiny speck of what an ordinary person might call free will. We may think their behavior is predictable and obvious, but they don’t necessarily see what we see. The person or worm may be suffering because of constraints that we are imposing on him/it, but if we weren’t making them miserable, something else would – the Devil or the IRS or something. The fact that we know the source of their pain doesn’t change in the least what we call their free will, or their capacity to gather information and form conclusions. {174} Same thing for us, even if our information is incomplete and our conclusions mistaken. The only thing that political freedom has to do with this is that it’s just one more thing that we can gather information and form conclusions about. Now that I’ve spent pages on this, I admit that I don’t really know what I’m talking about and my ideas might be all wrong. If that’s the case, I hope you’ll forgive me for wasting your time. I’m just trying to help explain why judges nowadays often focus on what people have done rather than on what they were thinking when they did it. I figured that “ontology” – the stuff I was just saying, about whether “mind” or other things exist – was a good place to start, but my real goal with all this is to talk about the best way to treat criminals. And now, without further ado, let’s get to it. Do we examine criminals’ thoughts, or just look at how they act?

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A lot of today’s criminal law is based on what criminologists have discovered about the way criminals act when they’re from various kinds of background. This kind of analysis doesn’t care what they’re thinking; it just predicts what they’re likely to do next. {175} In other situations, the law does ask about criminals’ thoughts. An example is premeditated murder: we punish premeditation (a mental state) more severely, not because we think it’s an especially evil way to think, but because it implies planning. It improves the criminal’s odds of getting away with murder, so we want to discourage it. The criminal might confess that he premeditated, in which case we would have direct evidence of his thoughts; but lacking that, we can deduce the thoughts from the actions (e.g., the steps he took to prepare). What we really care about is the evidence that the criminal planned it. We don’t care if we discover those plans through our own detective work or by checking out what the criminal says when he confesses to the crime. {176-177} Criminal law rewards or punishes people when rewards and punishments seem likely to make a difference. We can’t go back and change your bad childhood, so if that’s your only excuse for why you commit a crime, I’m afraid it won’t be good enough. We think we can discourage you from committing crimes in the future, and that’s why we’ll probably punish you despite your bad-childhood excuse. If your defense attorney tried to show that you shouldn’t be punished because of how your mind works, I wouldn’t be interested; what would interest me would be if the attorney showed me studies proving that prison sentences don’t improve people like you. I can imagine how a person might commit a murder, thinking that he had to defend himself, when in fact there was no real threat and the person had to be a little screwed-up to believe otherwise; I can imagine that such a person might feel threatened in such a case because of some horrible childhood experience; but you’ve still got to punish this kind of thing so that maybe this person, or others, will be deterred from being crazy in this way. So if you’re going to be crazy, it’s much safer from a legal point of view to be completely crazy (in which case we’ll just send you off to a quiet dorm room in the nuthouse) than to be sane in most ways and crazy in just one (because if you get caught in that one kind of lunacy, we’ll think that punishment might get through to you).

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We wouldn’t try to discourage criminals if we didn’t think people were rational. The deterrence approach doesn’t work if a person can’t put two and two together, can’t connect the crime with the punishment and conclude that crime does not pay. So we still have to assume that people have minds. We may not say they have free wills, the free ability to choose one kind of action over another; but we sure act like they do. Really, my behaviorism just amounts to this: instead of asking (1) what a person’s mind leads them to think about a certain situation and then (2) how their thinking in that situation leads them to act, we prefer to boil it down and cut out the “thinking” part. Nobody knows how thoughts and feelings work, so why get wrapped up in all that? Legal theorists sometimes complain about behaviorism in criminal law. The problem seems to be that they don’t like treating human beings as though they were just machines that react in different ways to being polished, scratched, knocked over, etc. Instead, the theorists want us to be extra-mad at a criminal who shows no regrets, or to feel sorry for a criminal who seems to know what a terrible thing he did. {178} I say that our wonderful feelings about machines don’t make any difference. What makes a difference is practical action: standing the machine back up, oiling its gears, treating it like a machine should be treated – and then tossing it on the junk heap if you’ve tried and you still can’t get the damn thing to work. We’re just trying to find the most accurate, effective way of dealing with people, and we find that it’s most accurate and effective to think of them as machines. That, I admit, is the opposite of Manny Kant’s idea that humans should never treat other humans as mere objects. Some people say that behaviorism teaches us to have a shitty attitude toward what goes on in other people. I must admit, it’s somewhat different from thinking of each human as a child of God. So, OK, maybe for me as an individual, it’s better to have a high impression of people. But the law is an institution, and the purpose of an institution is to function efficiently, not to have good attitudes toward the people it serves. My best example comes from the Middle Ages, where you see that people were convicted of being witches, not because they were casting spells, but because someone in the courthouse was mistakenly trying to understand their 75

thoughts. So if witchhunts ever come back into fashion, we will now have the superior approach of conducting them strictly in terms of behavior. {179} I would also suggest that behaviorism actually gives a person more personal freedom, by leaving his thoughts alone and concentrating solely on actions; but I have to admit that if behaviorists could get away with it, some of them would probably love to wire up a criminal and jolt that person until he was deathly afraid of misbehaving. I can’t say that would leave much room for freedom in one’s personal thoughts. How about less extreme methods of manipulating the thoughts of criminals, or of suspected criminals? Let’s say the cops grab a guy they think committed a crime. It makes the cops’ job a lot easier and saves tax dollars if the cops can just get the guy to confess. We agree that we don’t want them threatening to shoot him if he doesn’t confess; that kind of confession is worthless except to give the cops a chance to say that they solved another crime. But how about if they just say, “Confess and we’ll make sure you get a light sentence”? If that’s a lie, is it OK anyway? Here’s how I see the criminal defendants who come into my courtroom: • An innocent person, falsely accused, would want to clear his name, even if he was poor and therefore would have to be represented by a public defender who was handling a bazillion other cases at the same time, and even if the D.A. told him he’d be looking at ten years behind bars if he lost. Therefore, an innocent person is going to insist on going to trial. By the same token, a seasoned criminal with lots of money and political connections would instantly fall down on his knees and confess everything, because he would be deathly afraid of trying to win at trial. So this kind of threat by the police is good because it automatically tends to separate the innocent from the guilty. We’ve got too many criminals in America, and the way to deal with that problem is to convict them. We need every tool we can get to do that. The police may be the face of government to many people, and if the cops lie then the public may conclude that the government is made

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up of cheats; but if lying helps the cops grab criminals, then I say lie, lie away! {180} Not everyone sees things my way. I will not reveal my personal feelings on the subject, however. Instead, let me focus on the philosophical issue of what makes a confession “voluntary.” First, let’s think about the nature of a totally random choice. You’re standing at a street corner, and you could go left, straight, or right (or even backwards). Just for the heck of it, you go left. This was a free choice. It would also have been a free choice if you’d said, “I’ll choose by flipping coins until there’s just one winner left.” But it would not have been free if you were playing a game and the only permitted way of choosing a direction was to flip coins. You’d have been a slave to the rules of the game, with no idea what the outcome would be. Similarly, when the cops grab you, you’re subject to the rules of their game. But the situation here is different. If they lie to you about your risk of being convicted, and tell you how much better it’ll be if you confess, then your choice is not random. It’s predetermined by the information they give you. Your odds are actually worse than if you just flipped a coin, because then you’d have a 50% chance of choosing the right answer and saying, “No, I won’t confess.” I don’t see it like that, though; I think this is the same as a random toss of the coin. Moreover, I’m going to forget what I just said about how you’re a prisoner of the rules when you play someone else’s game. Instead, I’ll make exactly the opposite argument. It goes like this. You may say you have a free will, but nobody believes that your free will is so free that it can do whatever it wants. All of your choices are influenced by the factors you come into contact with. So there you are, sitting in this police station, and they’re playing mind games with you. These are just influences. You face influences every day. Nothing unusual here. You’ve still got an ability to make decisions, just like always, and nothing can change that, no matter how much the cops increase the odds that you’ll tell them what they want to hear. {181} You’ll listen to their words, and you’ll make a rational decision based on the information you have received. A rational decision is a correct decision, so whatever you decide, you’ll make the right choice for purposes of the fantasy world they describe to you. 77

In this kind of situation, the cops do not interfere with your ability to think clearly and make a reasoned decision. That’s different from a case where they lock you up and refuse to let you talk to anyone until you confess. It’s much harder to think clearly when you’re just sitting in a jail cell than when three cops are badgering you in an interrogation room. So let’s suppose the cops can’t prove anything against you, but they tell you they’ve got tons of evidence, so you’re sure to lose in court and get a much stiffer sentence than if you confessed. I see nothing wrong with this kind of lie. {182} The cops wouldn’t lie if they didn’t need to, so they’re lying because this is the only way they’re going to get you. That’s an important public interest that the judge should take into account. The public needs to convict you. It might be different if the judge thought you were really innocent, but the judge doesn’t think that. He makes fifty or a hundred grand a year, so it never dawns on him that you confessed merely because six months in jail sounded better than going into debt for the rest of your life to put on a good defense. In this example, the cops take advantage of one of your weaknesses; more generally, I think it’s OK if they take advantage of any of your personal weaknesses. This is the kind of circumstance where I put back on my “practical prosecutor” hat and stop pretending to be a philosopher. Most criminal cases end in a plea of “guilty.” (Surprised?) Only a small number of those who confess to crimes plead not guilty and try to retract their confessions. I haven’t studied the subject personally, but I believe the rest have the money to put on a good legal defense, if they wanted to, but instead they simply decide to take what’s coming to them and move on. So, if we limit our focus only to the small percentage who try to retract their confessions, I feel safe in assuming that most of them confessed because they felt guilty, and then later felt less guilty. The only time when we should allow this kind of person to retract their confessions is if the cops put them in a situation where they’d confess even if they were innocent. The previous paragraphs show the principles that guide my thinking in those rare situations. {183} I’d add that if the cops lied or used other tricks to get a confession, and the confession includes facts that only the guilty person would know, then I wouldn’t have a problem with that confession unless it involved some kind of really unusual police behavior, unlike lying or other

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tricks we’ve discussed – a kind of behavior that I strongly wished to discourage. I can’t think of an example right now. Some people say that we should reject confessions that the defendant was forced to make, because obviously you can’t depend on a statement that someone was forced to make. Let me tell you something. Many of the forced confessions I’ve seen were already backed up by a great deal of evidence. There was nothing unreliable about them. Furthermore, if reliability is the issue, then let’s make it the issue: let’s accept confessions (forced or not) if they prove to be reliable, and reject them if not. {184} For example, in the Townsend v. Sain case, the Supreme Court threw out a confession that the cops got by giving the guy a drug that made him tell the truth. I mean, if it made him tell the truth, what’s wrong with that? The only objection I can see is if it kept him from being able to decide for himself what to do. (Deciding to lie is not an example of something he might have decided to do.) So I might have no problem if the cops fed him a drug that confused him, like police lies do, or a drug with an alcohol-like effect, that made him say things that he might or might not think when sober but would never say. As long as it doesn’t affect his ability to make a decision about confession, no problem. There’s nothing brutal about such methods, so don’t give me any of that old police brutality crap. I really don’t care what’s happening in the defendant’s mind at the moment of confession, with the sole exception that I just want to make sure he is making his own decision to confess, however confused it might be. Quine’s definition of free choice requires nothing more (see page 173), so I’m golden: I’ve got the philosophical justification I need to handle these confession situations the way I want. For example, by Quine’s definition, holding a gun to someone’s head doesn’t take away their ability to choose. They can choose to die. If they decide to live, and thus respond to this pressure by signing a contract or doing something that they didn’t want to do, we might not hold that against them – not because they didn’t get to choose, but because we want to discourage people from holding guns to other people’s heads. I’m just saying that society’s need for law and order requires us to be more tolerant of some kinds of threats when cops (rather than private citizens) are the ones making them.

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I’ve been talking about criminal law and free will. I’ll briefly mention a different kind of example, involving another theoretical mental entity that we don’t need. The entity in question is “reputation.” Tell me, what is a reputation? Where do you find it? It’s something that we say exists inside people’s minds, like “free will.” Only in this case, my reputation is supposedly in your head (and the heads of everyone else who has an opinion about me). Now, what happens to this “reputation” if someone spreads a bad story about me? It damages my reputation in your head: something that I was keeping at your place has been ruined. But should I be able to sue? Let’s say the story about me is not only bad; it’s also true. Normally, if I sue someone for telling the truth about me, I’ll lose. It’s called freedom of speech. But let’s say it’s one of those exceptional cases where I have a shot at winning. Should I win? I don’t think so. I think the person who was telling the bad, true story was doing everyone a favor, regardless of the reasons behind those exceptions. {185} Another thing that lawyers and judges treat as though it had a life of its own: the principle of causation. They act like you have a simple cause and then a simple result. But a car accident can have many causes, e.g., tires, roads, coffee. We link those back to various defendants: the tire manufacturer, the highway department, the last place you stopped for java. Which ones caused the accident in a legal sense? Let’s not put it that way. That treats “causation” as though it were a real force. Let’s ask this instead: which party, if nailed, will respond most vigorously and effectively to prevent similar accidents in the future? For example, if the tires performed properly, society gains nothing by penalizing the manufacturer; but if the convenience store said you were getting major caffeine and instead it was decaf, then maybe a jury should say they’re responsible. So if someone was 99% responsible for the accident, but for some reason it seems like they can’t or won’t improve things, then we should instead go after the person who was only 1% responsible but who can make a difference next time. {186} Similarly, if a person tried to commit a crime but failed, they didn’t “cause” any harm, and therefore maybe we couldn’t convict them under a “causation” approach; but we could convict them under a behavioral “prevention” approach because we know that getting them off the streets will keep them from trying again. Or, more generally, as long as we can come up with a law, we don’t need causation in order to prosecute anyone who might pose a risk if allowed to run free. 80

One final example of legal inventions that we can do without: corporations. Since the 1930s, realists have been saying that corporations are not real, existing things; they are just collections of contractual relationships. Their actions are the actions of the individuals behind them – employees, stockholders, customers, etc. – and that’s how we should look at them if we want to get an accurate picture of how they work and what they do. The realists of the 1930s were concerned about the injustices that corporations can get away with. I’m not, but I still agree that corporations are unnecessary. How Can a Judge Believe This? Is behaviorism inconsistent with being a judge? {187} Not at all. People have all kinds of ideas about what they’re thinking; they may be confused about their own thoughts; but that has nothing to do with whether someone else can predict what they’ll do. Judges may think they’re not predictable, but they are, although the subject has not been studied much. {188} The published opinions of judges on the Supreme Court or circuit courts may not be the best place to start, though, because as I’ve said, those opinions mostly involve close, difficult cases, where a change of view by just one or two judges may be all it takes to form a majority on one side of the issue or the other. Something similar happens in jury trials, where each member has a vote. Even the unpublished opinions of trial court judges may not provide reliable information, because many cases at trial will be won or lost through procedural issues that depend entirely on the judge’s whim rather than on substantive law. {189} I like behaviorism generally, but I especially favor a behaviorist approach to the study of judging because judges are so full of bull when describing themselves and their work. Rather than admit that their choices are influenced by personal life experiences and prejudices, they like to talk as though everything they do stems from some deep, consistent philosophy. Similarly, law professors make judges out to be superhuman, sometimes for the political purpose of justifying greater power for the courts. I’m thinking, for example, of one law professor who tries to avoid his own conclusion that judges are morons or two-faced liars. {190} 81

Like other politicians trying to justify their existence, judges seem eager to persuade the public that judges work with existing law rather than making new law – even if this requires them to fib about what they actually do. You want to hear the other half of the story? Judges’ decisions sometimes depend on dirty backroom deals; judges will sometimes use the litigants as pawns in their battles against other judges; some judges get into that lifetime job, kick back, and tune out, while others try to reach decisions that will help buy them the next rung up the political ladder. (Myself, I pass a lot of time writing books and articles.) Judges are bureaucrats; many judges are bored or burned out; and they spend their lives sitting around in rooms with lawyers, out of touch with normal people. {191} A judge is like a military commander: you have to be able to do a lot of things reasonably well, but there are surely going to be people, perhaps including some of your subordinates, who are better at some aspects of your job than you are. For example, a judge’s law clerk may find that he can do better than the judge at researching and writing legal opinions, and certainly people who spend years studying a subject will know more about it than a judge who spends a half-day on it. Even those judges who weren’t ignorant at the outset (such as those who owe their jobs solely to their political connections) can become ignorant during a career reading opinions cranked out by their clueless brethren. {192} Judges, like commanders, have to make a lot of fast decisions. High-court judges like me have no real bosses to reconsider their decisions. Even in the lower courts, for every decision that gets formally reviewed on appeal, there are a thousand that nobody will ever second-guess – so after a while you can’t help starting to marvel at the pearls of unrebutted wisdom flowing forth from your lips. If you’re the sensitive, precise, or thoughtful type, you probably won’t make a good judge. (I’m not that type, so it’s easier for me to be a behaviorist than it might be for some people, who take more time to contemplate what other people are thinking.) There’s no room here for uncertainty; you make a decision whether you know what you’re doing or not, and you stick with it. It’s like Chuck Peirce said: human nature abhors a mental vacuum. I mean, few things have a shorter half-life than uncertainty in the mind of a judge. Judges are the type of person who just know they’re 82

right. Sometimes they defend themselves with the claim that they’re just doing what the law requires; {193} at other times they revel in their freedom to decide whatever they want. If my military example really holds true, then maybe law is too important to leave to the judges. None of this is intended as criticism. I’m just reciting the facts. It’s not perfect, but I’m not sure it should change. It would take a lot to rearrange the system, and I favor the status quo. My real point is narrower: that we shouldn’t expect judges to be anything more than mere humans, which means we’ve got to expect personal, maybe even eccentric results from them, especially in tough cases. Not to overstate: a judge need not have brilliant explanations in order to reach good, solid conclusions, although there may be no way of proving that they are. {194} There’s politics in science, too, but nobody thinks that disproves science; it just raises questions that become much louder when you’re dealing with something as unscientific as law. I may have understated the extent to which judges are really concerned about following the rule of law. If you don’t piss them off, or say something they don’t understand, or stand for something they don’t believe in, or have the wrong religion or skin color, or otherwise put yourself on their bad side or give them an excuse to write an opinion that makes you look like a total loser, then yes, by golly, they might act as though they really believe that the law is what governs your case. You won’t find many judges writing opinions that acknowledge the validity of many of the losing party’s arguments, however, because that goes against the rules of judging. In cases that are that close, some of their fellow judges will criticize them, which of course may not matter much to the rhino-skinned kind of personality I was just describing. {195-196} Judges’ freedom from outside influence can be a good thing, because it lets them act on the basis of motives that wouldn’t otherwise make much sense in our society. For example, judges don’t make more money for writing brilliant opinions. They have few sources of input to tell them how they’re doing, and therefore sometimes become more sensitive to criticism than if they were making big bucks for being good at what they do. That’s what would happen 83

if judging were rewarded according to the rules of market economics. The don’t argue that market economics should apply to my own performance on my job. People may think that judges are subject to outside influence because, after all, they’re appointed by politicians; but I would rather have you believe that a judge who is chosen by or through an independent bureaucracy, like the famously independent Federal Reserve Bank, would be easier for a politician to influence. I admit, however, that our approach of using political appointees means that you can name any jerk to become a judge. Let me close by saying just that, no matter how good or bad a judge may be, the power and attention that you get in this job are incredibly cool. {197}

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Chapter Six The Judge and Jury May Try to Get It Right
The fact that juries, unlike judges, do not give any justification for their decisions is a dead giveaway; a requirement that jurors explain their votes would be a source of profound embarrassment to the legal system. – Richard A. Posner, Problems of Jurisprudence, page 209

Ronnie Dworkin says every legal dispute has a right answer. We may not be able to figure out what it is, but it’s out there somewhere. Like the question of whether I shot the sheriff: I did, or else I didn’t. We may never be able to find all the facts, but at least we know these are the only alternatives. {198} But what if we ask about a question of law rather than a question of fact? Here’s a question of law: must shooting the sheriff always be punishable by death? For that question, there are no facts to be found out regarding, say, the effects that the death penalty might have. The mere fact that we might start out disagreeing is no clue; people often disagree before they learn more and eventually arrive at a common understanding. Yet I must repeat that I’m a judge. I’ve got to go into that courtroom and come up with answers. I can’t wait forever for people to sort it all out. {199} I’m asking whether a legal question can be “indeterminate,” i.e., whether it can become something that, for everyday courtroom purposes, does not have an answer. Dworkin says you don’t have a “tie” between two disagreeing viewpoints until someone says, “Yo – this is a tie.” I say, what if the 85

arguments are so confusing that you can’t even tell whether there’s a tie? To me, you have an indeterminate legal question as soon as people get stuck on it, which happens all the time. Trying another approach, Dworkin also says law is like storytelling: you take the facts, you pull together some explanations, and if it all seems to make sense, you’re done. But neither law nor storytelling can be tested to determine whether you have the best interpretation. These are ways to find a useful answer, not the right answer. Besides, real life has much stricter rules than storytelling, where you can make things up. {200} I say there may be no one right answer to a legal problem, but there definitely may be wrong answers. Yet the judge may want to give an answer even if he can’t be sure it’s the right one. The system needs to keep processing its workload, so judges won’t admit that they aren’t qualified to solve the problem and remove themselves from a case. If they did, maybe the parties could take difficult matters to an arbitrator, work out a special procedure, or otherwise find a way to get closer to actual justice. The problem with actual justice is that it disrupts the orderly functioning of the bureaucracy. There are two parts to the judge’s eagerness to announce an answer that may or may not be right: giving an answer, and figuring out whether it’s right. For example, the statement “I have to pee” may have reasons behind it (e.g., “palm wine always screws up my bladder”), but you may not feel the need to articulate those reasons until you sense that your statement perplexes you or someone else (e.g., “You just peed five minutes ago!”). Likewise, to start an interesting discussion of the concept that sheriff-shooters should be shot, you may have to find someone who disagrees. The point is, in ordinary life, you can reach your conclusion, but you may not always have to explain it. Thus, we don’t expect juries to explain themselves. They just reach their conclusions and that’s it. But we do expect judges to put down their reasons in writing, so we can all look at them, learn from them, decide whether to appeal, etc. I, personally, tend to simplify the process. I see it through the eyes of a judge on the move: I combine “giving an answer” with “giving a good answer.” As a judge, you just try to figure out the best (often half-assed) answer within the time available, often settling for decisions and reasons that are just “good 86

enough” rather than “really accurate.” {201} Even on that humble level, you often have to use whatever real or imaginary excuses the lawyers shovel into your waiting arms. If I ignore the majority of judges’ decisions, which go unexplained, and focus on the minority that we do explain, then I can imagine that a judge’s daily work is part of an “ongoing policy discussion” among informed people – as though it’s really intellectual to participate in a discussion containing so many haphazard guesses. Let’s get back to Dworkin. I am willing to guess at legal problems because I don’t believe there’s always a right answer. But Dworkin believes there are right answers, not only to legal questions, but also to moral ones – so you know he’s really on the fringe. Oddly enough, we call this kind of dreamer a “realist”: he thinks legal correctness comes from the real world of human beings, not merely from lawmakers’ artificial inventions. {202-203} Unfortunately, I’m out of time for this portion of the discussion, so let me wrap up by giving you three more problems with his idea that we can find correct answers to questions of law by treating law like storytelling: 1. When you get down into the tiny details, you see that statutes often contain accidental or deliberate gaps, and so do stories. Those gaps will rarely affect either the outcomes of cases or the flow of a story. 2. A story may sound the same to people of the same background, but when you get diverse types of people, you get different interpretations of the story. Same thing with law. 3. People who like a certain dead author sometimes speculate how he would have reacted to current events. This seems dumb, and so does the similar activity of trying to guess how the dead writers of an old law would have felt about new developments. {204} In short, storytelling is totally different from the search for the right answers to questions of law. Are there also unanswerable questions of fact? There certainly are many historical questions that we’ll never have the answers to, especially those requiring proof that a person did something deliberately. {205} There are 87

also counterfactual questions that we can’t answer with certainty. For instance, to decide whether Joe behaved reasonably in an alley brawl at 2 A.M., we might have to imagine how a nonexistent “reasonable person” would have handled the situation. For this purpose, we might have to figure out in which specific ways this person would be just like Joe (e.g., are we talking about the kind of reasonable person who might be found in an alley at 2 A.M.?). This is just so much guesswork. These fact disputes arise even when the judge is trying to find the truth, and American judges certainly do not always do that. {206} Judges make thousands of decisions daily to exclude many different kinds of evidence, which means that that evidence won’t be taken into account when judge or jury are deciding the facts of the case. Judges exclude evidence for many reasons. One is that the court’s time and resources are more important than those of the citizens who come to them, so it’s often a matter of whatever makes things go faster and easier for the judge. I have a suggestion in this regard. Since we’re often unable or unwilling to get into the facts and figure out what really happened, we should not forget how important it is just to give people an opportunity to vent their complaints and accuse their adversaries. They still won’t get justice, but maybe at least they’ll feel like they didn’t entirely waste their time in coming to court. I think venting your anger is good for you. It could be better, if Americans were as good as Europeans at creating justice systems that take a real interest in finding the facts. In the U.S., the disputing parties have to prove things at their own expense. {207} This makes people compete, which leads to great factual distortions because highly competitive lawyers excel in twisting and suppressing the truth. There’s no direct link between (1) the potential strength of the facts and legal arguments that could be brought together to support a person’s case and (2) the actual quality and quantity of attorneys and other resources that the person can afford. In criminal cases, we created the “beyond a reasonable doubt” standard in hopes of offsetting the mismatch between the prosecutor’s resources and those of the typical defendant. I know for a fact that this eliminates almost all cases in which innocent people are wrongly convicted; most criminal 88

defendants who appeal to my court are guilty. Unfortunately, this concern for the innocent means that we can’t convict a lot of other guilty people who should be convicted. Meanwhile, in civil cases, there’s no beyond-areasonable-doubt rule, so the players with fewer resources are often at a severe disadvantage. {208} You’d think that our justice system, which supposedly lets the parties prove their own cases, would keep the judges neutral; in that event, you’d think we’d trust our judges. We don’t, though, and sometimes there’s good reason for that. The U.S. is the only civilized nation that still uses juries regularly in both civil and criminal cases, hoping that this makes the legal process fairer by keeping at least part of the case away from the judge. You might think judges would resent juries, then, but they don’t. Indeed, they welcome them. A jury is like a bunch of trainees that the judge gets to teach, manage, and perform for. Juries liven up the courtroom, and they ultimately take responsibility for the outcome and save the judge the work of figuring out an answer and writing it down. {209} Not that juries are so great. The reason why we don’t require them to explain their findings is that the system would be very embarrassed if juries publicly presented the ridiculous thinking behind many of their conclusions. If you want proof that the system thinks jurors are fools, just look at all those rules and decisions I mentioned a moment ago, where judges keep jurors from hearing or seeing pieces of evidence that might conceivably confuse them. Considering how nutty a jury can be, I must point out that there’s no strong reason to have a jury in the first place. When arbitrators or other problemsolvers invent new methods of solving legal disputes, they never include this weird practice of putting the case in the hands of random people who know nothing about engineering, finance, or whatever kind of case it is. For that matter, the people they put in the judge’s role are usually experts in the field, not generalists like me. {210} The jury does serve the useful purpose of discouraging people from spending the time and money to fight over facts at trial. It goes like this.

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Most cases seem easy, perhaps because most attorneys are not very good at finding all of the legal issues and relevant facts in a case, or because the clients cannot afford to pay the attorneys to do so. So most people look ahead, see the jury, think to themselves that the jury will probably know how to decide this simple case, and that thought tends to discourage the parties with the losing argument. In the difficult cases, though, it seems likely that juries often reach the wrong factual conclusions. Then the judge writes up the case, leaving out some of the facts. Then it gets appealed, and the appellate court tends to emphasize the facts that make their legal conclusions look good, and ignore the rest. {211-213} Thus, by the time you reach the published opinions of appellate courts, you’re talking about a potentially large number of factual errors. Yet these opinions are the very place where judges and lawyers learn about what’s happening in the law. So maybe we should stop kidding ourselves that juries should be certain of their conclusions; instead, maybe we should teach them to just figure out the probabilities. But would that damage law’s ability to express important – certain – values to society? Lawyers and judges like to think that law invents and communicates solid values to the public. Unfortunately, lawyers and judges do not actually study this question; indeed, they generally ignore the work that scientists have done in this area, which tends to show that law does not have much of an effect on society’s values. {214} If anything, the law often copies values from society. For example, the business law found in the Uniform Commercial Code is based, not on legal inventions, but on standard business practice. {215} It’s doubtful, then, that the “certainty” expressed in the courtroom has much of an impact on how society looks at lawsuits and legal issues. So I see no reason to continue pretending that we do have that certainty. I’d rather admit to the public that we’re just making guesses about the probability of guilt in criminal cases. Similarly, in civil cases, jurors are just deciding which side is more likely to be right. {216} You won’t be convicted of a crime if the prosecutor doesn’t prosecute you. He will do that only after “screening” the case to see how solid it is. 90

Prosecutors usually screen their cases very carefully, to avoid wasting their resources on cases they won’t win. When prosecutors want to prosecute more guilty people for some political reason, they reduce their screening, which probably means more innocent people get prosecuted too; and since juries sometimes make mistakes, it probably means more innocent people will be convicted. The system makes these mistakes because it isn’t very good at determining actual guilt or innocence. But the system is good at determining apparent guilt or innocence. We have many ways of making it look like we know what we’re doing, including these: • We don’t know whether you’re guilty, so to avoid the risk that the public will blame the judge for a bad decision, we pawn it off on a jury. {217} We assign a burden of proof (e.g., “beyond a reasonable doubt”) or astandard of review (e.g., saying that the lower court will be reversed if it “abused its discretion”) to let us reach a firm conclusion instead of just saying we don’t know. We pass laws against “attempting” or “conspiring” to commit a crime. We may not know whether you would actually have gone through with the crime, or what kind of damage would have resulted if you had, so we just take the approach that you shouldn’t even have been looking like you were going to commit the crime.

It is unfortunate but true that, by the time we’re done with all this complex machinery, we tend to believe our own propaganda and think that we are determining actual rather than apparent guilt or innocence. Since we can never be certain, I’m against the idea of granting repeated appeals for criminal cases where people complain that their rights were violated. {218-219} Until they increase our budget, the money we spend on these cases comes at the expense of people with more important complaints; besides, who wants these things to drag on forever?

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As a final, sad, even shocking commentary on how poorly the whole system is conceived and operated, I want to mention how the Supreme Court has selectively assumed and ignored facts on criminal rights during the past 50 years. These are not facts about individual cases; they’re the facts on which the whole system is founded. First, liberal judges assumed that it was good to expand the rights of criminal defendants against the police; that this would not encourage criminals; that prosecutors’ expenses in litigating various criminals’ rights would not draw money away from other useful governmental programs; and that without these rights, the poor would suffer. That was the law for a couple of decades. Then conservative judges came in and assumed the opposite things. Neither side reached their opinions after careful study. Neither side seemed to care about the facts behind these major assumptions. Thus, the criminal law of the United States has swung back and forth in great arcs, at unbelievable expense, merely because of a few justices’ random political hunches. {220}

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Chapter Seven Do We Even Know What “Law” Is?
There may not be many “good men” in the specific sense of people who comply with laws merely out of respect for law, a felt moral obligation to obey it. – Richard A. Posner, Problems of Jurisprudence, page 223

“Law” is one word, but is it one thing? To me, you can look at law in at least three different ways: as a legal bureaucracy, as a collection of (mostly printed) statements on how to decide cases in various subject areas, or as a source of legal rights and duties. {221} Here, I’m interested in the third meaning. People often think our legal rights and duties come from rules and principles. I disagree, and so did Ollie Holmes. (See pages 15-19.) For example, he disliked the idea that law should take a rule, make a logical deduction, and reach a conclusion. He said that logic doesn’t resolve legal disputes. An alternative would be to solve them by the test of time. (See page 113). {222} Holmes’ own erratic writing style demonstrates his distrust of organized legal reasoning, or perhaps his inability to do it. Let me just clarify that I have not attempted, in this book, to imitate that writing style. Holmes evidently agreed with Chuck Peirce’s belief that the scientific person, always trying to advance knowledge, will keep trying to learn new things that will supersede his pet theories. Thus, rather than seeing himself as a prophet who discovered God’s will and then handed it down from on high, Holmes’ I-don’t-know-everything approach was summarized in his famous statement that “if my fellow citizens want to go to Hell I will help them. It’s my job.” 93

{223} He was a pragmatist. For him, law was a practical process in which the government hammers you if you do the wrong thing, so you ask a lawyer or read books to try to figure out what the law is, and the lawyer or the books are informed by their observations of what judges do. This is where he got the idea that law is nothing more than an attempt to predict what judges will say. But if you think a judge won’t hammer you for breaking the law, will you observe the law anyway? What about people who obey the law just because it’s the law and that’s the right thing to do? I doubt there are many such people, and I don’t think our policy should take account of them. Even if people don’t fear immediate arrest, they usually obey the law merely because of habit, conscience, or social pressure (although this just begs the question of where they get this sense of habit, conscience, or social conformity); or because they don’t think breaking the law will profit them (which would seem to apply only to those with criminal inclinations, but I guess I really think that everyone’s a criminal inside); or because they feel sorry for the people whom they would be hurting by breaking the law (nothing goodhearted about that!). {224} If you can handle the assumptions that Holmes and I make, you too will be able to assume that it’s simply irrelevant to ask whether people believe they are morally obliged to obey the law. Now, this idea that law is just a prediction of what a judge will do seems fine for lower-level judges. They decide a case by predicting what the higher court will say if the case gets appealed. Lower court judges don’t like to get reversed, so they try to anticipate the higher court’s reactions, based on that court’s previous decisions and other information. But what happens when you get to a top court – whose reactions are those judges predicting? Easy: they’re predicting what one of their fellow judges would say. This may include dead judges who ain’t going to be saying anything: you have to figure that their ancient words can come whispering ghostlike from the grave. So all the ordinary citizen must do, to avoid being ignorant of the law (which is no excuse), is to stay current on the latest speculations as to what dead judges might say about this or that. Or if law isn’t really a prediction of what some judge would say, at least it’s good for us to act as if that’s what law is – sort of like it’s safer to act as if 94

there’s a real God and a real Hell, just in case. We judges are sensitive to criticism from other judges. (See pages 194-96.) A good way to avoid their criticism is to imagine how they would decide a case, and then decide it the same way ourselves. Admittedly, this theory doesn’t explain what law is in tough cases where nobody knows what other judges would have done. Then again, your fellow judges won’t be universally criticizing you for making a weird decision in a tough case. Chances are, if you play ball with your buddies there on the bench, it’ll all balance out in the end. {225} But if law is predicting what judges would do, and if you simply can’t predict what other or higher judges would do in a tough case, doesn’t that mean there’s no law in that case? To answer that, I’m going to back away from what I just said. Law isn’t exactly the prediction of what other judges would do in a case; it’s a prediction of what the responsible judge will do. In other words, if you come to me with a tough case, and I scratch my head and look around and can’t think of what the hell the answer is, and if in the end I just make something up, well, that’s the law. I mean, of course it is, but also it’s the only thing the law could ever be in that case. So really, law is what other judges decide only if those other judges’ decisions will play a role in what happens in my courtroom. This applies even in lower courts. As I noted on page 80, we don’t trust the high courts totally, so there’s definitely room for some independence in the lower courts. The most accurate prediction of a judge’s decision must take account of all such independence – by calculating percentages, for example, for the different things that a judge might decide, just as a weather prediction might include the percentage likelihood of rain. Taking another look, then, it seems that law must include, not only what judges do, but also what they could get away with if they wanted to. The more broadly you define law, the more possible outcomes a case could have, and the more difficult it becomes to predict the judge’s decision. What I’m trying to do, here, is to give judges a way to avoid the debate over whether law includes rules, principles, policies, or what. (I know, this sounds a lot like the “practical reason” discussion in Chapter Two. What can I say? Sue my editor!) My answer is, law includes whatever the judge thinks it should include. It’s like the Mafia accountant who, when his bosses ask, 95

“What’s two plus two?” replies, “What do you want it to be?” I don’t think this can possibly be 100% true, but this is the theory I’m peddling right now, so stay with me. {226} The main problem may be that my version waters law down, making it sound like something we just invent, thus reducing its authority as something that people feel they should obey. (Of course, that’s no big deal if the only reason people obey the law is that they’re afraid of getting hammered; in that event the law could be any screwy thing and people would still observe it the same as before.) This reduction of law’s authority is mostly a problem for judges who range far afield, shoving their hands into all kinds of things. An aggressive judge tends to feel the greatest need to rationalize the extremes to which he carries his job. You can’t very well justify sticking your nose into a wide variety of issues by relying on a narrow, timid little concept of law. You need law to include everything but the kitchen sink. In other words, the law is like a nation’s currency: if the government invents as much as it needs out of thin air, then it has enough for any purpose, at the expense of reducing its value in the public mind. Judges like me, who aggressively stretch the definition of law to cover any action that a judge might take, are cheapening the concept of “law.” Not that members of the public care, as long as we either (1) turn out believable decisions in their own personal lawsuits and in the few that make the headlines or (2) teach them there’s nothing they can do about it when we reach decisions that make no sense. Fortunately, I can deny that I am damaging the law itself, because I just got through defining law as the act of judging, and of course you can’t damage an action. (Remember, I excluded two other definitions of law at the start of this chapter.) Nor does my definition damage the fundamental principles of our form of government, which I think can cope with pretty much anything. Or at least I hope they can. The way we’ve arranged it, judges can do what they want, within very broad limits, without even being criticized. So I guess judges normally hear criticism only when they’ve gone well out of bounds; and since they probably know what other courts have decided in similar cases, they probably know in advance they’ll be criticized for going out of bounds, so apparently the judges

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getting the most criticism also tend to be the least worried about it. So maybe criticism isn’t quite the restraint I said it would be. {227} Anyway, even if you assume for some reason that lower-court judges are supposed to follow the precedents laid down by higher courts, your average lower court judge still has room to maneuver. For example, he might think that the higher court made a mistake previously and would now decide a case like this differently (i.e., like the lower court judge thinks it should be decided), and therefore the lower court judge may feel that the “true” precedent is the one that hasn’t yet been written. This, too, proves that my theory might be the right one. To see why, suppose the higher court reached a decision a long time ago. This decision firmly laid down the law in a certain kind of case. Now another case like it comes up in a lower court. The lower judge thinks that the higher court would now decide this kind of case differently. So the lower judge decides the way he thinks the higher court would decide, not the way the higher court actually did decide the last time around. The lower judge thereby says that “law” is just another word for the high court’s future action rather than its past action. The law of this particular case is thus no longer what the high court said previously; it’s now what this judge has just said. If the high court reverses this judge and stays with its previous decision, however, the law of this case will revert to being what the high court said previously. Indeed, everyone will say that the law has remained the same as before, without interruption. What, then, was the law of this case during the period between (1) the lower court’s innovative decision and (2) the high court’s reversal? The lower court’s prediction was mistaken, but my theory says that, since it was a prediction, it definitely was law. It would have been the (incorrect) law of this case if the appellants had withdrawn their appeal and the case had been laid to rest, but that didn’t happen. Events now show that it could not have been the law, because the high court’s previous decision was the law even at the moment when the lower court was saying otherwise. I’m not especially fond of that example. Let me try again. Suppose two lower judges have cases like the one that the high court decided 70 years ago. One of them says, “I believe that law is a prediction of what the high court will decide in the future, and I believe the high court will decide differently next 97

time.” On that basis, this lower judge decides his case according to what he thinks the court will do, not what it did in the past. Meanwhile, the other lower judge says, “I think law is a set of concepts. My own concepts are limited to what the high court did in the past; I’m too narrowminded to consider anything that might have changed over these past 70 years.” On this basis, he decides exactly the same as the high court decided 70 years ago. As you might have guessed, the first judge is affirmed on appeal, and the second judge is reversed. This example proves that if you think of law as merely a set of concepts, and if you’re stupid and your concepts are narrow, then you’ll probably be reversed – but mostly, perhaps, in cases where the law is very old and much has changed. Otherwise, narrowminded stupidity may continue to match the latest appellate thinking. {228} Suppose the Supreme Court previously split, 5-4, in favor of a certain decision. Now one of the justices who decided with the majority leaves the court, and his replacement would clearly have voted with the minority. All predictions about the Court’s next decision in this area will suddenly swing away from that previous 5-4 decision. Therefore, if you use my activity/prediction theory, the law in this area changes as soon as the new justice goes into office, even though years might pass before the Supremes decide another case in this area (by which time the majority might have swung back in the other direction). Or let’s suppose that the swing justice doesn’t retire, but his vote with the majority was due solely to the fact that he was in a nasty mood because he didn’t sleep well the night before the decision; otherwise, he would have swung his vote the other way. He sleeps poorly whenever he’s more than eight days away from a full moon. The media publicizes these facts. Now judges across the country have similar cases in their courtrooms. The law in this area – that is, the lower courts’ best prediction on how the Supreme Court will rule next time – should include a prediction of the likelihood that the next decision by the Court will occur near a full moon. I admit, this prediction theory is a poor theory of law, but in my view it’s the best one we have. One thing I really like about it is that it makes lower judges interpret the law as they predict the higher courts would interpret it. The higher courts consist of better judges (like me) who are more carefully selected, have a wider perspective, attract more criticism when they do 98

something wrong, and therefore tend to be wiser than the lower-court judges. These are the arguments that people make in favor of the old-fashioned theory that lower courts should follow precedent because that’s the law. That’s why I think it’s important to adopt the new theory instead. I think you can see why this discussion gives me a chance to talk about Nazis again. After World War II, the Allies put the German leaders on trial. Those Germans had followed orders and had obeyed German law. Now they were being prosecuted for breaking laws that non-German countries had passed after the fact. Granted, these Germans should have known that gassing millions of Jews was a bit extreme, but there weren’t actually any laws against it. Over the years, people have debated questions like whether it even made sense to use laws and courts to deal with the Nazis after the war. {229} Obviously, these were monsters who had to be killed; the only question was whether we made a mistake in giving them a show trial first, and I think it was a good idea because it provided an opportunity to pile up the evidence against them so the public would agree that we should hang them. In other words, law is something that national leaders can use for political purposes, to provide a formal, solemn excuse for something they’re going to do anyway. This is what tinpot dictators do when they want to justify executing their opponents, but it almost never happens in advanced Western countries, and that’s why I had to reach back fifty years to come up with this example. Most tinpot dictators don’t think their opponents are as bad as we thought the Nazis were, so it was OK for us to use law this way, but it’s not OK for them. H.L.A. Hart felt that the problem in this Nazi situation was that you weaken the moral issue when you start talking about legalistic issues, like the validity of this law or the invalidity of that one. By contrast, Lonnie Fuller’s review of the situation got bogged down in those very questions of legal precision. {230} I think the disagreement between these two stems from the fact that Hart was a Brit, and over there they don’t have laws that declare other laws immoral like we do, so of course he had to rely on morality alone to figure out how we should have treated the Nazis. {231} In my view, the Nazis were obviously obeying their own laws and violating the law written within the human soul (which I don’t normally talk much about, but for which I’ll make an exception because, when it comes to the Nazis, I feel things in my soul, whatever that is). Since Nazi law was able to tolerate genocide, I reject their 99

whole legal system, good along with the bad. As I noted on pages 137-39, I have no use for their view that judging is a rigid discipline. If you are like a Nazi in your blind obedience to the law, then you might eventually come across a genocide-type problem like this, where you find that your legal/military system insists that you follow orders and kill members of a supposedly lesser race – for example, by dropping flaming napalm on the people they called “gooks” (i.e., Vietnamese villagers). Anyone living in Germany should have known that you are morally obligated to reject a system like that. As I say, I rigidly believe in hanging the generals who give such orders, and perhaps also the judges who punish the moral objectors within their society. The more relaxed, American style of judging, as I conceive it, does not rely as much on precise application of carefully written rules, and therefore helps us avoid making the mistakes like those which Nazi judges made. Nazi laws were laws; there’s no point in defining terms to avoid that conclusion. What’s more, they were “law’; that is, “law” includes all kinds of “laws,” good and bad, natural and artificial. Judges are supposed to decide cases according to “law,” not merely “laws.” So I can tell you as a matter of certainty that a judge is never supposed to say, “We don’t have any laws on that subject, which means Congress hasn’t been too worried about making sure that the courts get involved – so why don’t the two of you sort it out in some simpler, less expensive way?” This would not be good for the courts’ consistent effort to extend their power into every area of American life. Rather, there’s always some kind of “law” (if not “laws”) on the subject, so courts are always supposed to get involved, if only to tell the complaining party that the court has now considered the matter and rejected it (which means that the complainant now has no right to seek any other means of resolving what’s bothering him). It would be silly for an attorney to say to me, “We’ve finished presenting the law on the subject; now we want to present some important thoughts from outside the law.” It would be silly to say this because law already includes everything that judges might use to decide a case. (It has to; how else could judges pretend to know the answers to questions in every area of human experience?) So when I said, earlier, that law should incorporate more science, what I meant was that law already incorporates science; it’s just not 100

usually aware of that fact. We need more scientific awareness in law so that judges will realize what law is. Law is a prediction of what judges will decide; that is, it is a prediction of the extent to which judges will remain ignorant of most of the information at their disposal. {232} Courts should not hesitate to assign blame when there is no proof clearly favoring either side. Assigning blame in such circumstances might be wrong, but it would not be lawless. Indeed, considering how law includes everything, the only way in which a judge could be lawless would be to fail to apply all this marvelous information – i.e., to refuse to decide a case on grounds that he simply does not know the answer. Similarly, saying that a particular legal opinion is “lawful” means simply that the judge used rules, personal opinion, or any other source of information – in other words, it means that he decided the case. Or at best, a decision could be lawless only if it was obviously insane. Moreover, when a judge refuses to decide a case for lack of a clear answer, it puts that case into no-man’s-land. We can’t have that. Better that this mystifying case should become an incorrect basis for future incorrect decisions. I favor a scientific approach to law, except when it interferes with my power to control people’s lives. {233} Some judges want the public to believe that courts are a good thing. These judges feel that the public doesn’t like courts that place blame on one side or the other when the truth is extremely uncertain. You have to decide which side is right, even if you don’t know what you’re doing. Judges who would rather shoot only when they have the thing squarely in their sights aren’t like scientists, who insist on getting it right; they’re like generals who won’t fight unless they’re certain of winning. But society doesn’t need judges to decide the obvious cases (although it’ll be a cold day in hell when I let someone else decide them). The whole purpose of a judge is to muck around in complex, uncertain problems. Often, the judge will solve difficult legal problems by thinking just as a politician or bureaucrat would think. That’s not as scary as it sounds, because a judge tends to have better motives than politicians and bureaucrats. On pages 191-93, I described those motives in more detail, by pointing out that judges frequently display the following traits, among others: they are morons; they lie about what they actually do; they make dirty backroom deals; they 101

use the litigants as pawns; they look on cases as rungs up the political ladder; they are bored or burned out; they spend their lives out of touch with normal people; they go roaming off into ideas that make no sense; there’s little control on the quality of their decisions; and they tend not to be deeply sensitive, precise, or thoughtful. {234} Reading this, a person might wonder why anyone should respect the courts. Basically, it’s because some judges are honest, almost all are good at making themselves look like they should be respected, and most will do the right thing if that’s what a large percentage of the people paying attention to the case want. Also, those individuals who disagree with judges’ decisions tend to know you can’t win ‘em all, so they pick their fights, and therefore it’s rare that everyone who thinks a certain judge is a bonehead will speak up at the same time. Finally, lawyers think the public should respect the courts because that encourages the public to obey the law, even though the evidence suggests that people are generally able to live their lives in a generally civil way without giving a damn about courts. Similarly, in light of my argument that judges are nothing special, one might wonder why a person should obey judge-made laws that our hearts do not necessarily recognize as being right. A positivist (see page 153) argues that things get screwed up pretty quickly if everyone chooses which laws they’ll obey; we all fear that kind of chaos, so we just agree to obey all the laws, even the immoral ones. That sounds bad, so after arguing for a while, positivists tend to go back toward the starting point and admit that we do choose which laws we want to obey, and that we should choose only the moral ones. {235} We should obey them because we want to do the right thing, and not just because we see an opportunity to use them to our advantage – although, as I said on page 223, I don’t think the desire to do the right thing motivates most people. These observations apply to judges like anyone else. Moreover, judges take an oath to enforce the law, which means that (unlike the average person) they have an additional duty to do what they swear to do. Then again, you can always interpret these oaths in various ways. We simply can’t say that people should obey law because their hearts tell them to. Too often, there’s no telling what a heart will tell a person to do, if 102

anything. Scholars have been trying for thousands of years to identify that kind of “natural law” beneath the “positive law” that lawmakers generate, and in our society it’s gotten to an impossible point. Nature, as our modern society knows it, is not remotely the kind of place where you’d look for guides to civil behavior. {236} You could say that our laws are natural because they help our species survive, but nature is also a place that tells you “ethnic cleansing” is OK (for instance, some kinds of trees commit genocide by eliminating other kinds of trees through e.g., shading, as in a pine forest). Scientific principles describe real-world facts, but moral principles may or may not; and fundamental scientific principles lead all scientists to other scientific principles, while fundamental moral principles lead different cultures to very different additional moral principles. In the U.S., we agree on lots of things – that Nazis are bad, for example (but don’t worry; in my courtroom, they still get the same rights as anyone else) – but we disagree on so many other things that it’ll never work to argue that nature is the source of everyone’s law. {237} So when judges rely on whatever they wish to justify their decisions between the views of angry, conflicting cultural groups, the only “ultimate” thing that “proves” the correctness of those decisions may be the use of storm troopers – er, police officers. “Natural” law may influence policies, but too often it’s just a term people use to make their views sound better than other people’s views, which is not what I was doing when I said that everyone (except Nazis) agrees that Nazis are bad. At times, I may have talked as though judges’ decisions could be supported by anything, but that’s not how I feel about moral beliefs. In particular, I don’t think it’s appropriate to say that our moral beliefs rest on natural law. After all, natural law leads other people to have moral beliefs that conflict with yours. {238} Natural law is dangerous because, once people think their beliefs come from nature itself, no law or logic is going to stand in their way. For example, you’ll notice that when I say “justice” was done at Nuremberg when the Nazi generals were sentenced, I don’t get hung up in any of my usual philosophical back-and-forthing about what justice is. God tells me justice was done; I believe it; and it’s so. In other words, I do allow natural law to supply some of the really fundamental moral principles. This is not strange. Natural law, i.e., moral sense, is one of the things you could expect to influence a judge. Sometimes 103

it seems so strong that it overrides laws and previous cases; at other times it’s just a source of guidance. I noted, earlier, that judges base their decisions on all kinds of things, including law, policy, and the direction of the wind. Natural law belongs on that list. The judge’s willingness to rely on natural law is one of the things I’d want to predict, just like I might want to predict the judge’s irritability today according to the amount of sleep he got last night. I don’t think the amount of sleep he gets is a legal issue; it’s just an influence. But I think natural law is more than that. Why? Maybe I’m hung up in the terminology. See, we call it “natural law,” which means it’s law, which according to my screwy definition means it must be a prediction of some judge’s activity; but which judge is responsible for natural law? God, I guess, if he’s up there, or else maybe our society’s traditions, which are obviously not a judge. So this is a problem I’m inventing for myself, to make it harder to accept my theory that law is the art of predicting what judges will do. On page 232, I said that a judge could make a “lawless” decision only by failing to make a decision, or maybe by making one that’s clearly insane. The Nazi judges were lawless; they made decisions; so they must have been insane. They had the kind of insanity that lets a person function normally in most ways, but then make genocidal decisions that no moral person could approve. The people committing these immoral acts, being insane, did not think that they were doing something wrong. I favor punishing those who don’t understand that they’re doing something wrong. I favor it because I’m a behaviorist and therefore don’t believe in spending much time inside a person’s mind to see what their thoughts are. No matter how nuts you are, it’s your actions that count. In short, it was right to exterminate the Nazis. I recommend adopting your enemies’ attitude in this kind of situation (at least when you’re winning), so as to confirm their worst beliefs about you. Finally, to say that the Nazi judges (who followed their nation’s laws) were insane, immoral, or lawless, I have to draw upon concepts of sanity, morality, or lawfulness from outside Nazi law and society. That’s easy; I’ll just use American values. One of the best uses of natural law is to tell us that American values are better. {239} I conclude, from all this, that legal philosophers need not continue to worry about the difference between “positive law” and “natural law.” My thinking 104

goes like this. We use natural law to prove that American values are better, so natural law encourages the judge to follow positive American law (i.e., statutes, previous cases, etc.). Natural law and positive law are just influences that may affect judges’ decisions. So, in a way, I do agree with Ronnie Dworkin: relying on a lot of different things doesn’t automatically make judges lawless. We just disagree on how far judges can go. He wants them to avoid pushing their own personal views of what’s best for society; I think the traditional law contains some policies, and neglects many others, and that if the judge happens to be fond of policies that don’t make it into the statute books, he may want to resurrect them on his own. I would like to bring the discussion back to Holmes by talking about Freddie Nietzsche, who was philosophizing in Germany in the late 19th century, about the same time as Holmes was judging in the U.S. Nietzsche said things about morals that are a lot like the things Holmes was saying about law: that morals, or laws, follow what the dominant players in a society want them to be. {240} To support this conclusion, both men used the increasingly popular method of tracing an idea’s “genealogy.” This had two forms: (1) starting at the end and working back to see where an idea originated (often showing that treasured ideas came out of thin air), and (2) starting at an idea’s beginning and seeing what happened to it (e.g., finding ideas that started in one context, were adapted to a different kind of problem, and ultimately wound up being used for purposes that no one could have foreseen at the beginning). {241242} Nietzsche and Holmes had other things in common too: they liked war, fighting, the concept of scientific breeding of humans, and the idea that the urge to control is at the root of law (in Holmes’ view) or perhaps at the root of everything (in Nietzsche’s). These two thinkers also had significant differences, however; Holmes was far more responsible, humane, and democratic, and probably less consistent in accepting the implications of his theories. As mentioned on pages 222-23, Holmes was a pragmatist, oriented toward the real world. But he wasn’t always: (1) Although he recommended that lawyers study economics, he sometimes didn’t seem to care much about facts in his own legal decisions. {243-246} (2) He tried to say that when you decide legal issues, you should rely on traditional legal materials, regardless of the consequences, rather than dragging in any moral issues. The reality, as 105

I’ve argued (and as Holmes does seem to have known), is that many judges’ decisions, and even our decisions as to whether judges are legit, depend on moral views of right and wrong. (3) He felt that the principles expressed in previous decisions tell us only what the people in power thought in that time and place, rather than possibly expressing an enduring moral viewpoint or a perspective that does not exactly match what the big boys think.

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PART THREE LAW: INTERPRETING IT

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Chapter Eight Who Needs Congress When You’ve Got Judges?
The order in law is of decisions by the lawyers’ committees that we call appellate courts, and these decisions frequently are ill-informed, outmoded, or ignoble. – Richard A. Posner, Problems of Jurisprudence, page 261

For simplicity, let’s say “common law” includes every area of law where judges rather than legislatures have made most of the rules, and let’s say that “statute law” accounts for everything else (i.e., where legislators are the lawmakers). Common and statutory law are very different. The thing holding common law together is a network of concepts. {248} You could phrase those concepts in many different ways, but they’d still be the same concepts. The law is in the concept, not in the choice of words. Statutory law is not like that. When creating or using a statute, you have to use the exact words. If you use other words, you will almost certainly be changing the law. When interpreting common law, you start by trying to understand previous decisions. When interpreting statutory law, you start by trying to understand the words of the statute. Of course, the test of whether a student understands something is whether he can rephrase it in his own words. The statute’s words probably won’t mean anything if you can’t put them into concepts that apply to various situations. But as soon as you try to interpret a statute by 108

putting it into your own words or applying it to a situation, you are probably limiting, expanding, or otherwise modifying the law – so that, after your interpretation, it is no longer the original, unclarified text that became law. {249} In short, interpreting statutes is really quite different from interpreting previous cases. This is true even if the statute happens to contain a vague standard (e.g., “due process”) that seems like something you’d see in some judge’s opinion. As I’ve noted, I think common law concepts are based on previous cases and on judges’ ideas of good policy. As I’ve noted, however, judges don’t pay much attention to science, so it’s doubtful that they are very well informed on what would be the best policies in many cases. {250} So when judges practice typical common-law reasoning, they start with some kind of (probably uninformed) personal judgment. Holmes criticized the law schools of his day for teaching students to approach a legal problem by assuming most of the relevant concepts, so then it would look like they were solving the problem by mere logic. Like Socrates, Chris Langdell thought in this mistaken way. (Langdell may not have understood legal reasoning, but I still love the bizarre method of legal study he created for law schools from his office at Harvard. See page 99.) Langdell seems to have thought that legal concepts just lurk around out there, waiting to be discovered. (See pages 9-10.) In this view, you first get in touch with broad concepts, and then you apply them to the particular case. This is just a nonsensical way of approaching any kind of education, legal or otherwise. For example, when you’re teaching your child, you don’t follow Socrates’ advice and try to expose the kid to different aspects of Truth or Justice, so that he will develop an idea of what they are and will be able to recognize them when he sees them. Law students shouldn’t learn a concept of Agreement and then examine a specific case to see whether the parties managed to experience a degree of Agreement between themselves. The better approach is to start with the particular case and decide whether there’s evidence of what we’d typically call an agreement, or whether we have some reason to pretend there is. When I say that the common law is

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concept-based, I don’t mean it’s oriented around key concepts like Agreement. The analogy, in child-rearing, would be that instead of filling your child’s head with a bunch of ideals like Justice, you want him to be in touch with the gritty realities. So you tell the kid things like, “Justice is what the judge says it is.” This, it seems to me, is just common sense; it’s not a cultural bias that would sound strange or cynical to a person of a different social, economic, or religious background, nor a judicial bias that seems jaded to people who are less burned-out than I am. Therefore I do not distort or discriminate (culturally, intellectually, or otherwise) when people come into my courtroom, thinking or speaking in terms of Justice, Fairness, and Truth, and I convert their idealistic phrasings into words reflecting my own gutter-level misanthropy. {251} When I spoke, a moment ago, of pretending to find an agreement, I was thinking of situations where the facts seem closer to an agreement than anything else, so we figure that we may as well treat it under the law of contracts. In a sense, it’s like we’re admitting Socrates’ perspective despite ourselves: we deny there’s such a thing as a grand concept of Agreement, but then here we are, sticking this transaction under the “Agreement” heading because that seems to describe it. Not to mention that people seem a lot more inspired by legal talk about big-picture concepts, like Truth and Justice, as compared to the tedious, technical theories that lawyers invent. Whatever; I’m just not intended in all that. When judges decide cases governed by statutes, they generally assume that the legislature had a good reason for reaching the policy conclusions expressed in the law. You might think we should do the same thing when interpreting cases governed by common law: accept the fundamental concepts and the way in which previous judges have interpreted those concepts. This might produce results that seemed logical, but I say that, at the very least, the judge of a common-law case must ask whether the previous interpretations make sense; preferably, the judge would also reserve the option of rejiggering the underlying concepts. In reality, judges do frequently reconsider the concepts of the common law, just as legislators reconsider the

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words of their statutes – almost as if judges like me were elected representatives, answerable to the people. Holmes saw this. He said that, within legal disputes, judges are “sovereigns,” a word meaning “king” or “supreme power.” In his terms, you don’t just decide cases by logic; you have to exercise your will, your urge to control. I’d rephrase to say that when judges rethink the whole thing, they should be influenced (as scientists are) by a third attitude – scientific analysis of policy – that you wouldn’t get from either a logician (as Langdell suggests) or a control freak (as Holmes imagines). {252-254} As an example, I’d like to cite a Massachusetts case from 1842. In this case, Farwell v. Boston & Worcester Railroad, the judge decided a lawsuit between employer and employee. The judge did not rely on general Socratic or statute-like assumptions about Employment, which could then be followed with logical deductions about what should have happened in this particular case. Nor did the judge merely flex his sovereign will and do whatever he felt like doing. Instead, he made testable (i.e., science-like) hypotheses about real-world facts. I cite this case from 1842 because that was the last time a judge behaved so intelligently. [Joking!] Granted, the judge couldn’t have produced his reasonable analysis without first making some leaps of faith – e.g., inventing a nonexistent “implied contract” between the parties, suggesting that there might also be “implied warranties,” assuming things about how workers’ pay rates change under different circumstances and about workers’ ability to discover and interpret safety-related information, and guessing that the workers in question must have had other job opportunities. I must also grant that workers’ compensation laws have subsequently rejected this judge’s conclusions. Nevertheless, this case shows a science-oriented court in action: rather than relying on logic or control, the judge empirically refutes a theory by using other theories and nonexistent evidence. Holmes’ logic-or-control attitude leaves no room for science. It encourages the conclusion that law ultimately depends on the politics of the judge deciding the case. {255} I say the judge’s politics nevertheless represent science in action, in the guise of practical reasoning. 111

Against this, Jimmy Boyle says that any technique you might use to decide in favor of one party in a legal dispute could just as easily be made to work for the other party in that same dispute, and therefore there’s no such thing as the “right” solution to a legal dispute (which means that a judge who declares a winner must be just arbitrarily picking one according to his personal politics). Boyle’s examples, and my demonstration of practical reasoning as a reliable tool for deciding disputes, are as follows: • Formalism. Boyle says judges can use dictionary definitions or can take words out of context to prove whatever they want. My response: of course they can, and they do it all the time, but they’re not supposed to. Purposive Interpretation. We saw, on page 58, how Joe Isenbergh said judges should give up their hokey attempts to find the purposes behind tax law, and should just settle down and do their jobs, which involves the hard work of figuring out what the rules actually say. Boyle’s point is somewhat different. As he says, judges often decide cases according to the purpose that a rule is supposed to serve. He argues, however, that you can always find a purpose to suit your purposes. I disagree. I’ve mentioned that legislators often vote for laws after making back-room deals, involving horse-trading that has nothing to do with what’s best for the people. (See e.g., page 256.) Pieces of laws get ripped out and replaced, and often the final result is a compromise that does not necessarily hang together very well or make great sense. Despite all that, I can’t help believing that there is usually a clear purpose behind a law; that, when there is, judges can usually figure it out; and that, despite their scientific ignorance and their other drawbacks, judges who do correctly decipher that “clear” purpose usually do a good job of applying that purpose to the situation. Calculate the percentages here, and you’ve got, what, at least 20% of all cases being decided intelligently. Narrowing or Broadening. Boyle says that judges are free to interpret a case narrowly or broadly: narrowly, by saying that this case is not like another one, so as to avoid the rule in that other case, or broadly, 112

to make this case seem like another one and thereby justify using the same rule. On pages 95-96, I agreed that judges do have this latitude; I even cited Hume to show that this has been going on for 300 years. I don’t deny it; I just want to point out that Boyle has chosen a bad example to support his view, and that’s all I have to say. {256} • Administrability. Often, a judge will have to decide whether to base his decision on a rule or, instead, on a standard. (See pages 44-52.) That decision can change the outcome of a case. Suppose a judge sees that all the other judges have been deciding a certain kind of case by using a rule. The judge sees how that rule will work in a case that the judge now has to decide. Should the judge raise the question of whether to use a standard instead, knowing that the standard will produce a different outcome? I don’t know, but I’m sure that, if he does switch and prefers a standard, it won’t be because his personal views encouraged him to find a way of justifying an unexpected outcome. But let’s assume, for sake of argument, that it’s a case where everyone agrees that the judge must decide whether to use a rule or a standard, and that decision will determine who wins. What guides that decision? I can tell you it’s a tough one, but I don’t agree with Boyle that the factors I identified on pages 44-52 – things like reactions to race, the judge’s control urges, the need to see a shrink, etc. – leave the law totally at the whim of the judge. Institutional Incompetence. Boyle says that judges shouldn’t invent new laws because legislatures are better at that sort of thing. The legislature has been elected for the purpose of making our laws, and legislatures tend to have larger staffs and greater resources for investigation, research, and writing than a judge (who, as I often point out, doesn’t have much time and therefore must manage it carefully). There has been much research favoring Boyle here, but I won’t cite it. Instead, I just want to say that legislatures are selective in deciding which things to investigate and research, so there’s no guarantee that they’ll find the subject as fascinating as some caffeine-loaded judge who’s just dying to jump in and research the hell out of it. Granted, the legislature just might be that interested, but they might not, and I don’t think we should wait to find out. Also, the legislature may not 113

have such great resources after all, or maybe they’ll muck it up with horse-trading that favors their pet interest groups. Rather than stick the legislature with the duty of doing their job and leaving it to the public to get pissed off and demand reform, I think the courts should help the legislature to continue being inept and corrupt; this is best accomplished by doing the legislature’s job for it. I don’t say this just because I’m on a power trip. I sincerely believe that the court is shirking if it fails to grab absolutely every opportunity to make law – although for some reason I don’t think the legislature is shirking if it fails to do so. {257} • Moral Arguments. Boyle says people can always trot out moral arguments in favor of their respective positions, so when judges rely on such arguments, they’re merely expressing personal attitudes that another judge might just as easily have taken in the opposite direction. Again, Boyle offers a poor example; I can easily see the flaws in the moral arguments that the two sides in his example would offer. I don’t deny that people might make those kinds of moral arguments, however, or that judges might decide on the basis of them. So Boyle’s point doesn’t persuade me. Economics. I know more about this subject, so I think Boyle has raised a more interesting point here. I gave each of the others, above, a paragraph or less, but I’ll be giving this issue more than two full pages. OK. Boyle cites the case of Tuttle v. Buck to show that judges can use economic arguments with equal ease in support of either party. Maybe economists do wander all over the lot. But in the Tuttle case, the question was how the law should respond to a person who starts a business with the goal of competing with another company and driving it out of business. {258} You could say that consumers will suffer if this jerk eliminates his competitor, and then closes up shop, in which case there will be nobody left to provide what the other guy was providing before. {259} Or you could say that, hey, maybe he’s serious about making his new business run, in which case consumers get lower prices and better service. The court decided to give this new guy a shot. The court’s analysis was what I call “weakly

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objective,” which means one step above arbitrary. So Boyle is close, but no cigar. And that’s how practical reason helps me defeat Boyle’s argument. His point, overall, has to do with interpretation; but interpretation comes after the concepts, and as I said on page 248, the concepts are the key to common law. Dworkin, too, gets hung up on interpretation. He uses the analogy of the “chain novel,” where one writer writes Chapter 1 of a story, the next writer goes on that basis and writes Chapter 2, etc. {260} Dworkin says the earlier writers lay down the pattern for the later ones; I say the later ones have more freedom. (See page 98.) The real job of the later judge is not to help make the earlier cases look better; it’s to make a good decision in the current case, using the previous ones where they’re helpful. As noted on page 139, I like stability, but I don’t let it get in my way. Besides, sometimes you get more stability by changing the law, especially where it’s changing in a way I favor. I could probably rescue Dworkin’s “chain novel” analogy by noting that the judges who come later do have to pretend to make sense in the context of what’s previously been said. But I don’t see any reason to make Dworkin look good. Rather, I fancy that law is like T.S. Eliot’s concept of a literary tradition, where a genuinely creative new work affects everything that came before; for example, Shakespeare changed everything in the English literary tradition. {261} Lest anyone think that I would compare some dumb dork judge to Shakespeare, I hasten to mention that judges should feel required to contemplate the decisions of previous courts, and especially appellate courts like mine, only when the quality of those previous decisions (which is often quite poor) makes them useful in the present situation. For every really good, Shakespeare-style judicial opinion, our judicial/literary tradition is clogged with dozens of second-rate wannabes. People like Boyle get hung up on the task of interpretation because they mistakenly think that judges are required to understand and follow previous decisions, as though those decisions formed some kind of guidebook. As you know by now, I don’t like doing interpretation, so it’s convenient that my analysis proves that I needn’t bother. {262}

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Chapter Nine Fun with Statutes
[Supreme Court Justice Oliver Wendell Holmes] said that if the people of the United States wanted to go to hell it was his duty as a judge to help them get there. This attitude is irresponsible; it is not the raison d’être of the judicial system to give lessons in mindless obedience. But ... enforcing an utterly unjust law is attractive to the formalist because it enables him to prove that the law is different from the judge’s desire [and] is also attractive to the positivist because it decisively illustrates the separation of law and morals. This double whammy helps explain the appeal of formalism to the legal profession. – Richard A. Posner, Problems of Jurisprudence, page 265

In 1899, Ollie Holmes said that the way to interpret a statute is to figure out what the words of the statute would have meant if an ordinary speaker of English had spoken them at the time when they were written. Holmes thus made clear that he was not limiting the statute merely to what its author(s) meant. This is good, because we often have no way of knowing that, except if we ask what an ordinary speaker of English would have meant by them. {263} But what would Holmes say about unforeseen situations? An example: we’d have to say that the Constitution’s rule against illegal searches could not possibly prohibit illegal wiretapping, because there wasn’t any such thing back then. Another example: what if different English speakers at the time would have meant different things by some word that appears in the statute (e.g., “pornography”)? And how about situations where the meaning of a 116

word changes over the many years that a statute is in effect – do you still enforce the original, archaic meaning? Word of the day: “disambiguate,” to remove ambiguity from. Let’s say you read a sentence, knowing nothing about who wrote it or why. No matter how long you stare at it, you can’t disambiguate it. What’s your problem? Either you think it could be interpreted in two or more different ways, or you don’t even realize there’s an ambiguity in it – you think its meaning is clear – but someone else, who knows more about its purpose, can see that you’ve got the wrong idea. {264} For example, going back to the Aunt Betsy situation (see page 106), if everyone relied strictly on Holmes’ question about what an ordinary English speaker would have meant by uttering the literal words of the statute and the will, you’d inherit the Rolls even if you did waste her. This moves me to ask: what kind of thing is a statute? Best not call it literature; the literati disagree so sharply over the meaning of literature that we’ll be even worse off if we apply their methods to the interpretation of statutes. I’d rather say a statute is a command. People can agree on commandments. {265} In a similar comment (which he himself then rejected), Holmes suggested that you interpret a statute by figuring out what the lawmaker wants, as though a statute is a request. Yet I believe that a judge has the right to ignore a law passed by the legislature if he considers the law unreasonable. I disagree with Holmes’ idea that it was his duty to enforce statutes that would carry his fellow citizens straight to hell, if that’s what they wanted. (See page 224.) A judge facing a law with which he disagrees has a duty, not to serve, but to “civilize” the law by ignoring it and telling the public what’s best for them. If we think of a statute as a command from the legislature, to be enforced by the judiciary, then the next question is whether that command gets communicated well. Think, for example, about the Constitution’s command that the President must be at least 35. {266} Everybody knows what “35 years old” means. {267} It helps that the key words (e.g., President, 35, years) still have the same meanings as when they were written.

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By contrast, look at U.S. v. Locke. In this case, the law required people with mining claims to file them “prior to December 31.” Sure enough, a couple of losers filed their claim on December 31. Nobody had any reason to think that Congress cared about that one day; for all anyone could tell, Congress really meant “by” December 31 rather than “prior to” December 31. Believe it or not, this bit of pissant trivia went through years of litigation, all the way to the Supreme Court, and there these poor schmucks finally got the answer: they had indeed filed their claim one day too late. {268} I cite this case to show an example of a statute that seems unreasonable. Our legal system allows the legislative branch to father statutes and then run away, taking no responsibility for what happens to them out in the big wide world – that is, the legislators don’t have to provide detailed explanations of why they chose those particular words, as a judge might, and they don’t have to stay in touch with the statute after it’s conceived. Therefore, they dump upon the judge the ugly choice between reading the statute as he wishes or else letting it do its evil work as written. This Locke case raises a couple of questions that I won’t mention: (1) Am I to understand that, out of the thousands of pressing cases that the Supreme Court refuses to hear each year, it chose this one to demonstrate some important principle? (2) Considering the years and fortunes that people spend to litigate their lawsuits, wouldn’t we avoid a huge quantity of waste if we could get a response from someone at Congress as to the congressional position on the thing, rather than going through one, two, even three or four courts with our appeals, requiring each of them to take a wild stab at it? (3) Given the errors that sometimes creep into official published laws, as occurred in this case, why does it seem so alien to think that we could just pick up the phone, notify a quality-control person at Congress, and get a fix? I don’t know why such questions don’t occur to me. Locke also shows the problem with Holmes’ approach to statutory interpretation. His ordinary-English-speaker concept (see page 262) would reach the same unreasonable conclusion as the Supreme Court did. That’s because people are ordinarily precise. {269} If the words of the people who draft laws are commands, then they require the courts to act – which suits my action-oriented preferences just fine. {270} You can think of statutory interpretation as a matter of seeking out what the legislator meant, or thought, 118

or plainly said; but all of those traditionalist approaches ask what happened in the past, while a pragmatist asks what we can do in the future. The pragmatist will take aggressive action even when the statute is unclear. In this sense, the judge is like a platoon commander, under fire, who must go ahead even when the radio is crackling and he can’t understand exactly what headquarters is telling him to do. (Note also my references to my job as being like that of a “military staff officer” (page 90) or a “military commander” (see pages 19192); note, too, that I was never in the military.) As I see it, such a commander has a general sense that he must act, unless there is some particular reason to think he is being ordered not to act. (Technically, most statutes command the public, not the courts; I just mean that I’ll enforce them regardless of whom they command.) {271} This is another reason why I reject the Nazi concept that a judge must unquestioningly follow orders from the legislature. (See page 139.) For me, unlike a military officer, the first thought is, “Why should I enforce this statute? I don’t have to take orders from these guys.” When I try to apply a statute, what’s really happening is that I’m being gracious to the legislature: I could blow them off, but I deign to acknowledge their views, and I try to accommodate them when possible, mostly because that’s what my fellow judges expect me to do. I do cite the example of the military commander with a crackling radio, but the most important part of that example, for me, is that I am like the eager young lieutenant who wants to take action even though he could equally well say that the crackling radio deprived him of a clear understanding of the consequences of his decision – especially since offensive military action (and perhaps offensive judicial action too) tends to do more damage and require greater resources than defense. In my own case, the only direct command I’ve received from the legislature is that I’ve got to decide cases if I want to draw a paycheck; I could probably do that without enforcing the legislature’s statutes. The example of the crackling radio suggests, then, that you’re not really interpreting when the legislature hasn’t given intelligible instructions. {272} I’m not quite done talking about military commanders. I see another similarity: judges, like military officers, have the shared goal of protecting the U.S. government. Judges may disagree on how best to accomplish that, however, and therefore their shared values may lead them to decide cases in 119

contradictory ways, none of which may reflect what the legislature wanted. Since judges are sort of like military personnel in the sense that they all want to preserve the system that employs them, we should not imagine that judges are trying to take power away from the legislature by making up theories that contradict what the legislature says. It doesn’t work that way because, to repeat the opposite of what I said on pages 138-39, judges do have to make sure that their opinions follow the Constitution and statutes whenever possible, and behave like good little Nazis in treating the law as a discipline. {273} Granted, the crackling radio example isn’t quite right because a judge can never get on the radio and call the legislature, but at least military officers and judges sometimes share the experience of having no guidance. To underscore just how lost a judge can be, I should admit the other half of what I said on page 256, when I was criticizing what’s-his-name: I may not think the legislature always does a great job of researching scientific issues, but now I’m ready to grant that judges usually can’t do that kind of research either. Again, my point is that sometimes even the military commander must guess what he is supposed to do. Supposed to do, I say, not what he would like to do. Judges, too, must guess at what the legislature is commanding or asking them to do. They guess by putting themselves in the shoes of the legislators, using the Romanticist technique of “imaginative reconstruction.” It is a good technique; I rejected it on page 104. {274} The mission of the judge, like the military commander, is to understand a situation, not merely a statute or other document. So let’s look again at the provision requiring presidents to be at least 35 years old. (See pages 266-67.) Sure, it’s simple and obvious, and it has stood clearly for more than 200 years. But does that mean you can’t cook up good arguments against it? Nope. I doubt any judge will reinterpret it tomorrow, but it’s always possible. In other words, with this “imaginative reconstruction” technique, judges can be so free that they virtually eliminate the “specialness” of statutory law and instead let it all get sucked into common law, as though statutes were merely one more source of information. For example, our good friends Hank Hart 120

and Al Sacks (see page 21) say that you should interpret a statute by assuming that the legislators were reasonable people with reasonable intentions. A judge could take this to mean, “Oh, so they were just like me, so whatever I decide must be what they meant.” It’s especially easy to think this way when dealing with an older statute, where we might know more now than they knew then and therefore might feel confident in relying on our experience rather than their words. {275} And then there’s Landis and Calabresi (not to be confused with that guy in Star Wars), who say that judges should be free to disregard statutes altogether. (Hint to them: hey, guys, we are.) The problem with imaginative reconstruction is that the people into whose shoes you’re trying to insert your feet were entirely different people, and you really can’t do it. There’s no telling what Thomas Jefferson would think of the Constitution if he could have looked ahead to see what we’ve made of it. He might have torn it up and started over. We can’t really put ourselves in their shoes after all. So I’m back to rejecting the imaginative reconstruction technique again. {276} It can get you into a bind, where you’re trying to decide whether to figure out the ultimate goals of the statute (which may say one thing) or the purpose of the legislators (which, your evidence may suggest, would now call for a different course of action). {277} Statutes often come from compromises among legislators. There’s rarely much information on all the horsetrading that went on before the bill became law, and you probably wouldn’t want to hear that information even if you could find it. You’ve probably heard the line about how, if you love laws and sausages, you shouldn’t seek too much information on what goes into them. So the judge who “improves” a statute by adding a provision that he considers reasonable – thinking that surely the legislature intended to include it – may actually be undoing a political deal in which one legislator agreed to give up that very provision as a condition for getting another legislator’s support for the statute. Then again, sometimes the legislature leaves a provision out because they want the courts to invent their own solutions to something that the legislature didn’t understand or agree on. {278} The courts are too disorganized to be able to develop a common, consistent principle of interpretation one way or the other, so that the legislature could 121

know how its laws will be construed, and evidently the legislature is too disorganized to send a clear signal to the courts. Thus, under our present halfassed arrangement, judges try imaginative reconstruction; and when that fails, they often rely on “canons of construction,” which are guidelines to interpretation that we have accumulated down through the centuries. The most bare-bones approach to interpretation involves using a canon called the “plain meaning” rule, which (believe it or not) means exactly what it says. The plain meaning rule works OK sometimes. Judges who don’t want to invent their own solutions tend to like it. After all, it’s hard to argue with what the statute actually says. I don’t like the plain meaning approach because I think judges should be more aggressively creating policies to fill out statutes that don’t seem to cover the situation fully. {279} Thus, we come again, in this statutory context, to the question we faced in the common-law context: what gives judges the right to make law based on their own views? The question is easiest to answer in the situation where the legislature appears to want the courts to start with a vague statute and figure out how it’s really supposed to work. In most other situations, where you can’t tell whether the legislature wanted you to expand or adjust the statute, you’ve just got to decide for yourself. If you do decide to proceed with an aggressive interpretation of the statute, canons of construction may be helpful. {280} The plain meaning rule was an example; another example is this: when possible, save a statute rather than overturning it. Overall, these canons are about as useful as folk wisdom; they are often vague and sometimes contradictory. The case of Leo Sheep Co. v. United States illustrates some of the things I’m saying. {281} The Supreme Court decided part of that case on the basis of the old “expressio unius” canon. This canon says that, if the legislature went to the trouble of listing a bunch of specific things that a statute is supposed to apply to, and failed to list another thing that must have been obvious at the time, then you assume that the legislature deliberately omitted that item. As I say, canons have problems; the problem with this one is that maybe the legislature was just trying to give a list of examples, leaving it open for new situations to suggest later additions to the list. {282} Despite the weakness of this canon, the Supremes relied on it even though they had to go through logical contortions to avoid a number of other arguments that would have 122

favored the opposite party – including another canon that actually had more relevance to this case than expressio unius did. {283} As I say, the Supremes chose the wrong canon for guidance. That is, I admit that a judge like me can sometimes tell the difference between canons that fit the case and those that don’t. Unfortunately, the point I was actually trying to make was that canons aren’t especially useful. The case of United Steelworkers of America v. Weber is a good, relatively recent example of how our whole toolbox of statutory interpretation theories can still leave us without a clear answer. Weber was a white guy who couldn’t get into a training program because Kaiser Aluminum was voluntarily keeping half the program open for blacks, in hopes of correcting a situation where 40% of the population was black but only 2% of the company’s skilled workers were. {284} Weber sued on grounds of racial discrimination. The case went to the Supreme Court. The arguments were strong on both sides. Weber had a lot of evidence to show that he was the kind of person to whom the anti-discrimination statute was supposed to apply. The other side said, Maybe you are, but that’s only because Congress never anticipated that someone would try to apply the statute to this kind of voluntary, private-employer program. {285} Weber lost, apparently because the Supremes chose to go with what they saw as the purpose of the statute rather than its wording. So the Court seems to asked about the purpose of the legislators, not merely the purpose of the statute, bringing us back to the thought that the Constitution may not really express the rules by which Thomas Jefferson et al. wanted us to run the country. {286}

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Chapter Ten To Hell with Statutes
Agreement on the meaning of legal texts may in many cases depend ultimately on force – law’s ultimate backing. – Richard A. Posner, Problems of Jurisprudence, page 296

The Supreme Court’s decision in the Weber case (pages 283-85) depended, in the end, on the Court’s feeling about affirmative action: if the Court hadn’t liked it, the Court would have used a different approach to interpret the statute, and the case would have gone the other way. In other words, policy determined the outcome. Can we come up with anything more precise than that, or must we just shrug and say, “It’s all politics”? Our good buddy Ron Dworkin says there is indeed a principle behind Weber: it’s the principle that “equality” justifies affirmative action. {287-288} So when it’s the white guy vs. the black guy in Weber, what does “equality” tell you? Dworkin assumes that equality favors the disadvantaged black person over those who don’t like Weber-style affirmative action programs. But I don’t think we can automatically assume that in all cases. Frankie Easterbrook says there are statutes where the legislature does want us judges to fill in the gaps and invent policies, and then there are statutes where the legislature just wants us to apply exactly what they’ve written. So he says we should start our analysis of a case by deciding which kind of statute we’re dealing with. {289} If we decide it’s a statute that’s supposed to be applied exactly as written, then we apply it to the case only if it clearly fits.

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The problem with this idea is that the legislature usually doesn’t bother asking judges like me to bend and shape the laws even when I think that’s what the legislature wants me to do. I mean, yeah, if we judges could get our act together and be a united group, we could probably tell the legislature that, from now on, we’d apply the law only as written unless they specifically instructed us otherwise. Then we could leave it to the legislature to go through thousands of pages of statutes, amending each of them to say whether they want the judges to go beyond the statute’s plain meaning. Frankly, this ain’t gonna happen. But if we go ahead with Easterbrook’s idea without that kind of active cooperation from the legislature, then we’ll stop using whole areas of judge-made law even if that goes against the wishes of the legislature. {290} Easterbrook’s suggestion is a political one, affecting the powers held by branches of government, and he uses political rather than technical or scientific arguments to support it. He’s right in saying that judges should not make an end run around the process that legislation must go through – which includes, for example, the President’s veto power. {291} Yet Easter-brook allows that kind of end run himself. He lets the legislators hand off to the judges when politics prevents the politicians from making the statute say exactly what they want. Easterbrook wants the law to indicate where judges are free to improvise and where they must apply the rules exactly as written. Nowadays, he says, law’s control over us is so pervasive that people unconsciously hold back from taking action – it’s almost second nature to fear that you might be breaking some unknown law, interpreted in some unforeseen way by some nutty judge. He wants to roll things back to a more limited kind of government. This, to me, is just wishful thinking. And it shows that his overriding principle is the political principle of “limited government” rather than justice. {292} Cass Sunstein is a guy who works just down the way. The other night, we was out sucking down suds and shooting pool at Harley’s, and he told me his view. It goes like this. To get around the problem of judges who interpret statutes on the basis of prejudice, guesswork, and goofiness, the court system should draw up a working list of presumptions. These presumptions would be somewhat like the canons of construction, but might be more oriented toward 125

specific kinds of cases. For instance, we might presume that the legislature intends to favor minorities. The courts would draw up this list of presumptions and hand it to the legislature, which could then strike down any presumptions it didn’t like. The list of presumptions would probably get whipped into tight shape before too long. Also, these would be rebuttable presumptions – that is, we’d ignore these presumptions in a given case, if someone could prove that they didn’t apply. This is an interesting idea. But here are the things I tell Cass are wrong with it: • His presumptions are bound to be politically controversial. Legislation is controversial because it reflects the publicly announced decisions of elected representatives, whereas judges can quietly make up their own rules as they go along. So there would be less controversy if the status quo continued – that is, if judges kept on sneaking in their politics quietly and unpredictably, on a case-by-case basis. {293-294} Having a standard set of presumptions would mean that judges would lose some of their power to inject their own personal favorite rules. If the legislature wanted to fix problems with the courts, they would have one big target to shoot at, rather than a thousand little ones. But I doubt this is a serious objection; I think the legislature is too busy to bother trying to straighten out the courts. Communication Philosophers used to think that what happens, when I communicate with you, is that I have a mental picture of something, I say some words about it, and these words produce the same picture in your mind. This may happen sometimes, but most of the ideas we try to communicate don’t come with corresponding mental images (unless maybe if we think in Chinese ideograms); and even when they do, it’s really unlikely that we all use the same mental images.

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An extreme “communication skeptic” is a person who doubts that we communicate anything. This skepticism is easy to understand, when we’re talking about communicating specific mental images. Other than that, the extreme theory fails to communicate anything meaningful to me. It’s easy to disprove: just say something and watch the other person respond in a way that shows they understand you. Written communication can be more difficult to understand than speech, but a similar experiment will prove that it, too, can succeed. For example, a legislature, having no collective mind (see page 104), and thus no thoughts to communicate, can succeed in communicating. {295} There are good reasons, however, to be a skeptic – a less extreme one – when you’re dealing with law. For instance, we may interpret some statutes correctly, and we may interpret others incorrectly, but we don’t know which are which because, as I say, you can’t pick up the phone and confirm your interpretation with the legislature. {296} We don’t have the kind of feedback suggested in the previous paragraph. And as the decades pass, we slip further away from the world that the writers of constitutions and old laws had in mind. Another reason for skepticism about our ability to communicate well in law: the increasing diversity of judges and citizens that I mentioned on pages 128 and 202. Nowadays, everyone interprets your words differently. I simply do not know how to make all the people I am judging understand me. Most of the individuals who are directly or indirectly affected by my rulings live in a world very different from mine, and I am highly ignorant about the kinds of lives they lead. Indeed, I can barely communicate some of my thoughts with fellow lawyers, even when I write them down! Thus, as I suggested on page 119, I often have to use the cops to force citizens to understand (or at least accept) my interpretation of the law. Like a bad parent, I use force instead of communicating effectively. So, yeah, I guess I’d have to say that my inability to communicate effectively makes me a bit of a communication skeptic myself. Since communication sometimes fails, we must sometimes accept that we can’t find the best answer to a legal question. Therefore, contrary to my criticisms of precedent on page 118, I now want to say that it’s better to settle 127

for the standard, possibly mistaken, answer that judges keep repeating through the years. The judge who believes there’s a right answer will often reject badly reasoned precedent, preferring instead to get to the bottom of the matter and solve it properly; but I know you can’t always figure out what a given law was really supposed to accomplish, so when I slip into this particular funk, I don’t care to try. {297} New big word: hermeneutics. [Stray thought: how many judges, do you think, are named Herman?] Hermeneutics started in the 1800s as a German effort to find a reliable method for interpreting text, especially the Bible. Some Anglo-American scholars have tried applying it to law. These various scholars have developed a lot of sensible, but minor, canons of interpretation, such as this one: “Understand the problem that the author was trying to solve.” {298-299} Sensible enough, right? Overall, however, the hermeneutics approach has not yet managed to pull together anything significant to help us interpret statutes. Consider the example of interpreting between languages. As noted on page 271, there’s not just one “right” way to do it. Your interpretive style depends on what you’re trying to accomplish. You may find that you can have literal accuracy but will simultaneously become more difficult to understand, because the speaker’s original concepts do not translate well into the different cultural setting of the hearer. Similarly, judges have differing goals when they try to interpret statutes. Since “interpretation” can mean different things, it might be more precise if I use another word to express my primary focus. The word I prefer is “consequences.” For me, the important question is, what consequences will follow from different views of a statute? {300} This focus on practical results is what pragmatism is all about. One of the parties coming into my courtroom will argue that a certain statute applies to this case and that it requires such-and-such an outcome. He’s got one interpretation. There may be others. I’ll look at the various interpretations and try to decide what would be the consequences of each. So I’m not really replacing “interpretation” with “consequences”; I’m just analyzing interpretations in terms of their consequences. My pragmatism forces me to 128

look only at the consequences, and not at other factors that might seem important. This is fine because the consequences are the only things that matter – which, if true, proves that I have added nothing by converting this to a discussion of consequences, since judges have always analyzed interpretations by asking about “what matters,” which must have been the same as the “consequences.” It bothers me that judges like to evade responsibility by saying that they’re not personally to blame for the consequences of their decisions – they’re just interpreting the command of the legislature. That’s partly why I want to switch the discussion to consequences: I think it’s easier to hold a judge responsible for a mistaken assessment of the consequences than it is to hold him responsible for a mistaken interpretation. I think this because “interpretation” is a backwards-looking, historical analysis of the future as the legislature saw it, while “consequences” requires the judge to make his own forward-looking analysis of the scientific issues, whether or not he knows how to do that. How does this talk about science and the future mesh with what I was just saying about how it’s better to rely on precedent than to get to the bottom of the problem? Basically, I’ll go with precedent if it’s clear enough; and if it’s not, then maybe I’ll try to put myself into the shoes of the legislature through the use of “imaginative reconstruction” (which I most recently approved and rejected around pages 273-75). Then, since I want to be forward-looking, I’ll take my best interpretation of the statute and speculate about its consequences; and if I don’t like them, I’ll start tossing out excess baggage – which may include either previous court decisions or the legislature’s shoes – in hopes of finding an interpretation whose consequences do appeal to me. As I pointed out on page 265, I’m not under any specific obligation to enforce a statute merely because the legislature enacted it. Of course, my concern about consequences will limit my ability to use the statute in any way I please, because if I reach a really bizarre conclusion, that will have the undesirable consequence of opening me up to criticism from other judges. Then again, if I’m pretty sure my thinking is right – which is how judges usually think of themselves – then I’ll probably believe that my bizarre

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conclusion is destined to become the wave of the future, and therefore I will probably flatter myself on its creativity and usefulness. I don’t mean to fool anyone with my attention to consequences. No matter what word we use, judges will still be ruled by their personal prejudices to the same extent as ever, and will be no more inclined to use science than they were before. You may have noticed, for example, that I am comfortable with supplying philosophical rather than scientific support for various factual assertions in this book, and that my “forward-looking” pragmatism includes a healthy dose of looking back at the ideas of others. As I said on page 62, there are many reasons why legal reasoning tends not to be scientific; and as I noted on page 273, most judges can’t do a very good job of scientific research. My preoccupation with consequences could take us further than I would care to go. For instance, Calabresi suggests that courts should have the power to actually overrule statutes whose consequences they consider bad. {301} This could easily lead to a point where judges had to do a lot of extra work, cleaning up statutes that the legislature was too lazy to write well or retire at the appropriate time. Revising statutes is only fun when the judge can do it on a freelance basis. Calabresi’s idea would also require the legislature to add, to its schedule, the massive duty of reenacting laws that a horde of busy little judges have overruled. This would be a pretty big change in the way our legislature works, although it does seem like a good idea if, as I say, our legislators are not reasonable people with reasonable intentions. (See pages 274-78.) Finally, if you will pardon me for kicking poor Dworkin again, I’d just like to point out that his chain-novel analogy (page 259) is idiotic for yet another reason: statutory law starts with one kind of author, the legislator, but then switches over to another kind of author, the judge. He didn’t say anything about different kinds of authors. A real novel couldn’t have different kinds of authors. Since this is all so confusing, we may as well rely on politics for guidance. Let me offer this political summary: liberals believe government can level the playing field for everyone, and therefore they want the legislature to crank 130

out lots of laws; conservatives don’t want government interfering when they’ve got a good thing going. Liberals don’t trust judges, who too often tend to become part of the old boys’ club at the expense of women, minorities, weirdos, radicals, etc. Conservatives don’t trust judges, who too often invent cockamamie reasons to stand up for women, minorities, weirdos, radicals, etc.; but if some liberal law has managed to squeak past the conservatives’ expensive lobbyists in the legislature, then the courtroom is the conservatives’ last chance to hire expensive lawyers and squash it. Despite being liberals, Calabresi and Dworkin are willing to let judges tinker with legislation, which seems surprising; but they do this only to help the legislature make its many laws as relevant as possible. Meanwhile, despite being a conservative, Easterbrook (pages 288-91) wants to cut back on courts’ power to tinker with legislation, which a conservative ordinarily wouldn’t want to do, but he wants to do this only for fear that the court will somehow help an old statute remain relevant and dangerous. {302} Not that I’m conservative or anything, but I tend to agree that the legislature should stay out of it. As I claimed on pages 143-52, courts are better than legislatures at making law in many situations. Besides, even though the legislature cranks out the laws, the courts now have most of the power for making those laws useful – fleshing them out, adjusting them, etc. That’s the way it is and, as you know, I like the status quo. I guess it doesn’t hurt, either, that this arrangement makes me one of the most powerful legal figures in the country. {303-307} Another conservative, Bobby Bork, takes a position somewhat different from mine. He’s a formalist – that is, he says courts should avoid injecting their own values into the decision of cases, and should instead “stick close to the text and the history, and their fair implications, and not construct new rights.” Thus, for example, he tries to say that, in the famous 1954 case Brown v. Board of Education outlawing segregation, the Supreme Court reached the right decision by correctly interpreting the “equal protection” provision of the Constitution. I think they reached the right decision, but not by any “interpretation”; there were just a lot of good political reasons to end segregation.

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To explain his “interpretation” theory, Bork says the framers of the Constitution deliberately made the “equal protection” clause vague because they wanted the courts to figure it out case by case. I really don’t like the word “interpretation.” To me, the act of figuring it out yourself is not interpretation. You’re not interpreting anything. You’re just injecting your own values into the situation, doing your best to find an answer that makes sense to you. Bork doesn’t like this conclusion, but that’s OK, because I don’t like him telling me that I don’t have the right to decide cases as I wish, plugging in whatever personal values I consider appropriate. {308-312} If you want proof of the fact that I’m right in injecting politics and that the Supreme Court was right in doing so in Brown, just think of what would happen if they decided another race case tomorrow, overruled Brown, and said we were going back to segregation. Why, there’d be hell to pay. Riots, talk shows, you name it. Stability would go out the window, and you know we can’t have that. People would suddenly discover that politics lay at the root of decisions by the Supreme Court, and that, right there, is one concept that we do not need to publicize. Then again, if politics are at the core of the Court’s decisions, then I don’t think they’re going to be returning to segregation any time soon, because they know they’d have to deal with riots and talk shows and, frankly, I believe they tend to prefer the status quo. So my example here is essentially bogus. But let’s go with it. Suppose the Supremes do reinstate segregation. People flip out. Congress is buried in angry phone calls and flaming e-mail. Congress takes a look at the Court’s decision and, let’s say, Congress discovers that the Supremes’ decision is based on a very solid analysis of existing law. What does Congress do? Want to place bets on how long it takes them to pass a law to remove the solid legal basis that the Supremes relied on? Let’s just say that if the definition of a “nanosecond” is the amount of time between when the light turns green and when the New Yorker behind you lays on the horn, we’d be likely to see Congress demonstrate the kind of swiftness and resolve that it ordinarily reserves for world wars and presidential sex scandals. Now, I ask you, why in the world should we make Congress revise the laws to match what we expect of our government? What’s the point of having 132

something as important as desegregation written into the black-letter law of this nation? As I said a moment ago, the courts are making most of the important law in the U.S. now. I just told you how I feel about legislators and their corrupt ways, so I don’t think you can seriously expect me to help Congress become the nation’s most important lawmaker by allowing it, rather than the courts, to lay the rules for the really important things like segregation. I’d like to close this discussion of Brown and the politics of it all by mentioning the viewpoint of another formalist, Hans Linde. He cites a fairly useless study of black children’s self-esteem – a study that the Court in Brown cited in support of its decision – and says it proves that science changes its mind, gets confused, and is not a stable enough source of information to base law upon. I’ll just say that I have no problem with the idea that you shouldn’t rely on bad science, but nothing in formalism makes it more reliable or useful than good science. So until judges learn how to do science that’s better than what the legislature does, a person might think it’s better for judges to keep on being formalists, just following the legislature strictly. {313}

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PART FOUR LAW: WHAT IT SAYS

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Chapter Eleven Justice Is What I Say It Is
[S]ince the costs of operating a legal system free from errors would be prohibitive, the best of real-world systems will exhibit a copious inequality of legal outcomes. – Richard A. Posner, Problems of Jurisprudence, pp. 333-34

All methods of legal reasoning require the judge to inject his own values into tough cases. Yet we just saw that such values produced, in Brown, a decision that most people now firmly support. If value-based judgment can do that, then maybe we should forget about the search for a perfect technical method and instead try to find a sort of meta-value that tells us which of our ordinary values are most important for helping us decide tough cases. “Justice” is the obvious candidate for such a meta-value, but that doesn’t end the hunt. We’ve seen more than one version of justice, and each of them behaves differently. Corrective Justice The first important expression of the idea that justice should correct things, or set them right, appears in chapter 4 of Aristotle’s Nicomachean Ethics. {314} He said you should try to figure out if one party wronged the other and, if so, you should take what the bad person gained and give it back to the good person, even if the bad person is someone important and the good person is just a bum. {315} I point out three things about Aristotle’s view here:

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There has to be both a wrongful act and an injury, not just one or the other. The income or social standing of each party is relevant to the question of whether they committed injustice. You have to look at what the bad person could have done instead, and at how much the good person was injured. So if it would have cost the bad person a lot to avoid injuring the good person, and if the good person had very little to begin with and therefore didn’t lose much, maybe the bad person’s action was sensible. We may ask ourselves whether to measure such things in terms of the relative importance of the gain or loss to a poor person or a rich one. “Correction” might be an appropriate guiding concept for criminal as well as civil cases. {316}

To us, these insights seem pretty obvious. But go back to the primitive tribe I told you about on page 5. I made it sound like you just get revenge yourself, with no customs or elders to guide that. Corrective justice replaces this with an arrangement in which the judge gets revenge for you, perhaps with the aid of a highly expensive and unpredictable procedure. An early example: the Hebrew “eye for an eye” rule. (As that example shows, unfortunately, corrective justice can’t always achieve its goal of giving you back what you lost.) But that’s not the only way to think of corrective justice. If you look at the wronged person as, first and foremost, a member of the tribal family or an important asset of the community, then your greatest concern may be for what the group, not the individual, has lost. (Example: the injured person was able to do things for which no one else has the skill or strength.) If you’re thinking in terms of the group, you might let the wronged person sue, not because you think it’s healthy for him to seek justice for himself personally, but because the group thinks he’s in the best position to show what went wrong and how he can no longer help them out like he used to. {317-318} As a judge, I must say that Aristotle’s idea of blind justice – being able to ignore the income or social standing of litigants – is not natural. Or at least it 136

was very alien to me. It’s something you have to learn and make a habit. I don’t say that every judge learns it, but I feel I have done so. I admit that I dislike riots, and also that I sometimes sacrifice the truth and let one party win for the sake of stability (see page 135), but that never involves favoring one person’s political position and letting him win for the sake of stability. Legal justice, as I’m describing it, is impersonal, and it is very roundabout. You still have to seek it yourself, and in that sense it’s still personal, but now your involvement isn’t directed at the person who wronged you. Instead, you have to seek justice by persuading cops, judges, prosecutors, and legislators to take you seriously. Our motto is, if you want something done right, give it to the justice system. Now, instead of having personal feelings of frustration or hurt or anger toward one person, you have such feelings against a whole slew of them. Basically, you’ve got personal issues with a whole crew. They may see justice as a question of whether they feel like helping you, and they may have no such feeling if they don’t like you, or if the other person is more respectable, or if some other extraneous factor interferes. Finally, the impersonal nature of corrective justice means that we decide it according to legal principles – which, God knows, we’ve got enough of to justify a great many inconsistent conclusions. With principles, we can keep people from trotting out all of their complaints about each other and getting to the root of their dispute; we can instead focus on isolated issues and can leave most of the bad will intact. Aristotle rightly saw that impersonal justice is thus more than an excuse for nosy people to pry into other people’s affairs. In our system, judges in the movies are sometimes able to do the right thing even for people who piss them off, look funny, say strange things, forget to wear a suit to court, etc. In addition, personality-oriented judges will tend to favor locals over foreigners, which discourages out-of-towners from doing business here. {319} We’ve already talked about the difference between general standards and more specific rules. (See pages 43-44.) A standard leaves lots of room for the judge to decide according to his personal preferences. But there are some reasons to think that standards are better nevertheless. First of all, you find standards especially in advanced countries, which automatically makes you think they might be better. We have so many standards, as compared to poorer countries, because our judges are more confident of their ability to 137

balance the many factors that go into a vague standard. I know I am. I haven’t thought much about the possibility that judges like me (as compared to Third World judges) are actually lost in a much larger bureaucracy; more out of touch with ordinary people, and therefore less aware of how their vague standards screw up life and business; more intensively trained to ignore the obvious flaws of their systems; and more encouraged to continue their present injustice by a large, wealthy legal profession that benefits from it – in a word, less patient with precise, irritating rules that would hinder their exercise of the godlike wisdom by which they rise, in their own minds, above all other members of society. Despite their heavier reliance on rules, less-developed countries don’t have a more solid “rule” of law than the more advanced countries. (Once again, I am not citing empirical studies to support my theories here.) Or maybe their decisions only seem more unjust because, while all legal systems victimize their citizens to some extent, citizens of wealthier countries are more able to absorb the expense and pain. The reason why there is less of a rule of law in the less advanced countries is that the judges in those poor courts don’t know as much about the art of impartial justice. That art includes having rules or standards, which they do have. I think the thing they get wrong is that their judges just don’t try as hard as we do to ignore personal differences among the people appearing in their courts. [Note: the International Court of Justice in the Hague presently includes judges from Sri Lanka, Algeria, Madagascar, Sierra Leone, Brazil, Hungary, and Venezuela; most earned their law degrees at law schools in their own countries. See http://www.icjcij.org/icjwww/igeneralinformation/igncompos.html.] I’m not raising the possibility that, in some cases, those countries’ political systems might prevent even the noblest judge from controlling the evil behavior of the elite. Anyway, it seems that most lawsuits in the less advanced countries must involve rich and powerful people versus poor and weak ones, because I wouldn’t be commenting on the partiality of judges in these countries if most of their lawsuits were just rich vs. rich or poor vs. poor. If the thing that really makes a less advanced legal system unjust is that it tends to be a tool with which the rich oppress the poor, then the mere 138

existence of rules or standards has nothing to do with the difference between “advanced” countries and the rest. The question is, rather, what the rules say and whether the judges can enforce them against everyone. In short, our poor brown brothers should learn from the example of America, where everyone gets the same kind of punishment for a given crime no matter what their race, educational level, or social rank, and where the rules of procedure invented by judges like me make sure that the poor and the rich receive similar levels of justice. Unlike the U.S., whose law fills whole libraries, the less advanced countries have too many rules. Maybe they have all those rules because they’re desperately trying to keep cases from being decided according to personality – which seems confusing because, if their judges preferred to decide things according to personality, they wouldn’t create the rules in the first place. Any way you slice it, we know a lot more about justice here in the good ol’ U.S.A., where one of our common sayings is, “Life isn’t fair.” At this point, I would like to share three observations regarding the rule of law: • If you have a rule governing a certain situation, you have the rule of law in that situation. (No comment on whether you have to have rules or standards governing everything in order to have a complete rule of law.) Even when rules are unfair, or are enforced unfairly, they’re better than no rules. The reason is this: if the legal system targets an individual person, that poor sucker is out of luck; but if the system writes up a rule against a whole group of people, it encourages them to get together and plot their strategy, or at least share their misery. So the best way to encourage revolution may be to pass a lot of rules and be up-front about the fact that your legal system is attacking specific subgroups in society. I like stability, and therefore I prefer standards rather than rules. {320} Under the rule of law, you’re supposed to decide cases according to the values that society had previously, when it wasn’t freaking out, like it might be now if this happens to be a moment of crisis. This is a

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good thing about precedent: it reminds us of how we used to see the situation when it didn’t seem nearly so important. • You can have the rule of law even if you have standards rather than rules. Standards are just vaguer, which makes them harder to administer in an unbiased way. So, to state the obvious, a biased judge in Colorado will tend to produce less justice than an unbiased judge in Bangladesh, and the situation will be even worse if the standards available to the Colorado judge give him much more leeway than the rules allow the judge in Bangladesh. If you consider my repeated statement that judges are ultimately guided by their personal prejudices, then it seems that the only way judges can apply vague standards in an evenhanded way is if they have no special opinion on the subject. Now, that’s a truly rare thing. Nevertheless, no matter how vague things may be under a given legal standard, I’ll still insist that the rule of law is at work because I cannot imagine that my legal system sometimes fails to observe the rule of law. {321}

Getting back to corrective justice, let me say that if the legal system is going to take away your right to avenge yourself, then it has to give you some kind of remedy, compensation, satisfaction, or something, when someone wrongs you. And that’s what we do. No matter what bad thing happens, the courts are going to give you a fair hearing. Granted, this “fair hearing” is unpredictable – sometimes they’ll help you pursue some god-awful ridiculous claim all the way to the Supreme Court, and at other times they’ll effectively bar the door to a valid complaint or defense because you don’t say it right, or because you don’t have enough money to hire a lawyer and pursue it “properly.” Regardless of all that, I do believe that precious right to a fair hearing is there for everyone, at least in theory. Since the courts see how much they are helping us (in theory) in this way, they do not understand why you might wish it weren’t so hard to resolve a simple disagreement with someone, like when you suspect that your grandfather might have ended this kind of fight by just banging your heads together and telling you to knock it off. Although you may not be able to afford the cost of pursuing it, you do have a “right” to a obtain a legal “remedy” when others wrong you. What kind of 140

remedy should it be? At this point, I would like to announce a subtle, unannounced shift in my focus. I’ll continue to mention the primitive tribal situation, but I will now begin to move away from my earlier idea that, under a primitive revenge system, the right to a remedy was your right; instead, I can now focus on society’s needs. This shift accomplishes three things: it addresses a need that society may or may not have, it lets us consider “remedies” that don’t have much to do with the revenge motive, and it gives me more leeway to avoid asking whether private lawsuits make any practical sense for most people or most wrongs. That said, our remedy options are either (1) we deal with the problem after something terrible happens, using either a private suit or a public prosecution, or (2) we prevent the injury before it occurs by e.g., locking up the kind of person who is likely to cause this kind of problem. So even though locking up a child with crime-oriented genes before he has committed any crime wouldn’t be revenge, society could say it was a necessary preventive step. That is, society could see something “wrongful” that might justify a “corrective” measure, even if a child’s crime-oriented genes aren’t a wrongful act of the type Aristotle required. Frankly, I doubt Aristotle would insist that we must first find a wrongful act anyway, if he saw how our genetic screening could achieve justice on a “wholesale” basis. Naturally (although I don’t say so), we would also test corporate executives to see whether any of them happened to have crime-oriented genes but had somehow managed to channel their urges into behavior that we assume is constructive.I would feel this way even if the society that defined “criminal” behavior was Germany in the 1930s, and if the most unwelcome genes happened to occur predominantly in Jews. On page 316, we noted that “corrective” justice can’t always give you back what you lost. But let us not begin with the priority of setting things right for the injured person wherever possible (e.g., giving you back the car that the thief stole, along with the cost of repairs), and then handling the remaining wrongs (e.g., loss of an eye) in some other way. That would be a pragmatic approach. Instead, let’s lump them all together, observe that we can’t always make things right for the injured person, and then conclude that making things right cannot be a consistent priority. This conclusion sets us free to 141

adopt “remedies” that may help society as a whole but don’t do a damn thing for the person who actually got hurt, even when the person could be helped. You may say, Whoa, what happened to the idea of remedying wrongs? But your question contains an implicit error on the subject of “wrongs.” You see, I forgot to mention that an act is a wrong only if it offends a right (never mind how I defined it for purposes of the child with criminal genes); and since rights are now in the hands of society rather than the individual, the law gives them to us and the law can take them away. Presto! Right no more. You may think you’ve experienced a wrong, but now that the law has changed, you’re – pardon the word – wrong. So, for instance, if you ask me what happened to honesty, dignity, and kindness, I just say, I’m sorry, but this is an advanced legal system. I’m afraid you’ll have to show me the law that entitles you to that sort of thing. Otherwise, you’re on your own. (Of course, you also can’t take the law into your own hands, so I guess you’re really not on your own either. Call it legal limbo. See page 121.) Again, I want to emphasize how obvious it is that there should be a remedy for wrongs. {322} We inherited some relevant attitudes from Aristotle: (1) He made no distinction between immoral and illegal acts. If it didn’t break a law, it wasn’t wrongful. So goodbye to dignity and all that positive stuff, which you can’t force people to observe but which you can keep reminding them they don’t have to observe. You don’t have a right to enjoy the public conditions necessary for happiness, but you do have a right to stew in your own private frustration. {323} (2) Aristotle implicitly drew on natural law, like my story about the desire for revenge in primitive tribes, to justify his sense that people have a gut-level need for revenge, regardless of what the rules say. So even if society doesn’t care to compensate injured people, at least the injured person ought to see something happen to the bad guy. This is basically as far as Aristotle got, and that’s where things have rested ever since. {324-325} A few others tinkered with it in the 1970s, first trying to say that Aristotle wanted the injured person to have a remedy, even if the injury was not wrongful (which would include the case where you injure someone by putting them out of business, and therefore would have to repay them for what they lost!), and then saying that the injured person should have a remedy if, and only if, the other person was the moral and legal cause of the 142

injury (which would mistakenly include punishing the insane, and would mistakenly exclude some cases where two people, acting separately, each did enough to cause the damage by themselves). {326} The most important recent contributor in this area has been Jules Coleman, who came up with this modification: a wrongfully injured person should receive some payment for his injury, but not from the person causing the injury if that person didn’t gain from it. Coleman’s example is no-fault auto insurance, which seems to make sense if you figure that the person causing an accident ordinarily won’t get much joy out of it. His idea may make some sense, but no-fault isn’t the right example. Under a no-fault system, the innocent pay insurance premiums to support the system right along with the guilty. Besides, the driver who causes the accident does sometimes gain something, namely, the 99 times that he got through that part of town faster, for every one time that he had an accident driving that way. Really, the injured person is paying and the injurer benefits. My solution to the problem would be somewhat different: I would say we are redefining the rights in question when we adopt a no-fault system, eliminating a right that used to require compensation. {327-330} I’d say the same thing about “strict liability,” which holds someone responsible for injury regardless of whether they could have prevented it. An example is a manufacturer of a dangerous product: again, as Aristotle would say, we could hold that manufacturer responsible for all injuries caused by that product, even if they were unforeseeable, as long as society decided to write the laws that way. Aristotle’s concept of corrective justice originates in his sense that people won’t accept a legal system unless it gives them a good substitute for the primitive urge for revenge (i.e., the “retributive” urge). {331} Another primitive aspect of what we’ve been saying is the fact that the human belief in “rights” is very fundamental – you can find it in the most backward peoples, and even in animals. There’s no surprise here: you won’t survive if you don’t defend yourself and insist on the basic stuff you need, and it’s quite natural to feel a special “moral” anger when someone crosses the line into these rights. {332-333} I mention this merely to suggest that judges and scholars might benefit if they put a little more effort into studying 143

sociobiology to learn about the genetic origins of our “moral” urges, and a little less into unscientific whining about real or imagined rights which, as I say, are certainly not inalienable. Formal Justice Some philosophers have suggested that any legal system must have certain basic principles. One of those principles is that, if law commands something, people have to be able to obey it. This principle implies that you’ll never hold people responsible for breaking laws that didn’t exist when the people acted. But this isn’t the way our system works. Imagine a lawsuit that’s a really close contest. Both parties thought they were doing the right thing at the time, and there’s no clear law on the subject. The answer, telling them who was wrong, doesn’t exist until they go through trial and appeals, months or years later. Of course, one of them wins and the other loses. How does our system handle this situation? Ordinarily, it penalizes the loser, without worrying about the fact that there was no law to guide him. In a justice system as expensive and slow as ours, this punishes well-meaning people who raise very good questions, and the punishment may far exceed their actual mistake; it discourages sincere people from taking a chance with something that might someday be litigated unless the answer is really obvious (and they’re willing to spend the money on an attorney to make sure). It treats good people no better than those who knew they were pushing their luck (or, looking at it the other way around, it treats those who push their luck as though they were sincere). Another person might ask whether I should even use our legal system as a guide on how to treat people when they gamble and lose on a very good, close question. But that question doesn’t occur to me. I just accept the system as it is, which leads to the thought that the important thing is to make it worth the winner’s while to go through those years of litigation to arrive at the new principle, which will enhance our law on the subject and will be available for those who can afford to use the legal system in the future. In other words, I am not concerned with making the system function effectively for those who can not afford it. The laws become refined only 144

when people litigate them as this hypothetical winner has done; therefore, they become refined mostly in ways that matter to people like him. This principle I’m talking about implies that it would be wrong to hold someone responsible for breaking a law that they could not comply with. In a case of strict liability, you’re responsible for any resulting damage, no matter how perfectly you did everything. Then again, in a strict liability situation you always have the option of not making the product in the first place, which is a reasonable question to raise if you’re making the kind of dangerous stuff to which we usually take a strict liability approach. Since you have that option, you do have the ability to comply with the law or, more accurately, to stay the hell away from it, assuming you knew of it. So I guess the philosophical principle is OK after all. Another basic principle that philosophers like is that, to be just, a law must apply the same treatment to people in similar circumstances (focusing, here, on circumstances relevant to that law). But consider this example: Judge Getlost decides Case No. 1. The loser is a guy named Albert. Two months later, a higher court, with authority over Judge Get-lost, decides Case No. 2. The decision in Case No. 2 directly contradicts the decision in Case No. 1, and the higher court says so. Albert hears about Case No. 2, makes a photocopy of the higher court’s opinion, shows it to Judge Getlost, and asks if Case No. 1 can be reconsidered because the higher court has now said Getlost was wrong. Will Getlost give Albert another shot? Never. Well, not never, but almost never. In our system, once the case is decided and the time for appeal is past, that’s pretty much it. Judge Getlost will trot out the usual excuses – for example, that it would be unfair to the guy who beat Albert in Case No. 1 – but Getlost is not going to bother finding out whether those excuses actually apply. I agree with this way of doing things because the whole purpose of a judge is to process cases and get them out of his hair. So if you try to tell me that I’m supposed to treat people the same if they’re in similar situations, I say that, once the case is over, I don’t give a damn about any similarities between Cases 1 and 2. I just don’t have time to go back and do things right. Our legal system would be outrageously expensive if we did that. So I can treat people

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differently, even though they’re in exactly the same situation, and still produce “justice” as I define it. {334} The philosophers have another principle, with which I agree: that there must be a way to find the true facts relevant to the law. I believe we have no way of knowing the true facts (see page 114), so I consider this principle obvious. I think that pretty much does it for the subject of formal justice. I may have mentioned that I don’t really like formalism. (See pages 40, 61, 81, 265, 303 or thereabouts, 312, etc.) But since everyone else seems to, I may as well toss in a principle that I think does a better job than the ones I’ve been criticizing. My proposed principle goes like this: A law is unjust if it is so contrary to dominant public opinion that virtually no one will obey it, or if it is so incomprehensible that no one can obey it, or if it is enforced so rarely that people forget about it and it becomes a trap for the unwary. I know what you’re thinking – “He just doesn’t like speed limits or tax laws” – but that’s not it. Really. I merely wanted to give you something that, when combined with Aristotle’s concept of corrective justice, could begin to support a legitimate rule of law (not that I doubt we have one already). I doubt this principle, by itself, would point out all unjust laws, but maybe some at least. Distributive Justice In some cases, people argue that they should be granted a certain right, or that they already do have that right and that the court should recognize it. {335} But what if you backed up a step and tried to distribute everyone’s rights fairly, from the beginning – how would you proceed? Most lawyers and judges would consider this question too abstract. We could start with Aristotle again, but his only relevant comment is that, if the government is going to hand out grants or medals, it should do so on the basis of merit, rather than give everyone the same amount no matter how poorly they might deserve or use it. {336} 146

Bruce Ackerman says people naturally tend to distribute things equally. To see this, he tells us to imagine a bunch of Americans flying to a planet that has resources that, if managed carefully, will allow them to live good lives. They have to decide how to distribute those resources. He suggests reasonable rules that will govern their discussions. One such rule might be that you can’t claim that you, or your view, are superior to someone else or their views. {337} From that rule, Ackerman says the settlers will probably agree that no one has any more or less right to something than the next person. In fact, he says, they’ll try to make sure that everyone has equal opportunities. I see these problems: • He says they’ll decide to start buying and selling things, so it seems likely that, before long, the shrewd traders will have more and the others will have less. {338} If I were in that discussion, and someone said to me, “You’re no better than I, so you shouldn’t have more than I,” I’d reply, “Being as good as I am doesn’t justify getting as much as I get. At a certain point in his youth, Hitler could still have claimed that he was as good as the next person, and I certainly wouldn’t advise giving him what he needed to get started.” I’ve seen enough debates to know that there’s no predicting where they’ll go or how they’ll end. Ackerman’s settlers could really decide just about anything. {339} You’ll incur some significant expenses if you try to equalize things so that the most severely handicapped person is on exactly the same level as the most gifted one. Ackerman says abortion is OK because fetuses cannot defend themselves through the “dialogic” method. {340} But neither can infants. What if some parents wanted to kill their newborns?

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In short, Ackerman does an excellent job of showing why judges rely on their own intuitions rather than on philosophers, when deciding real-world cases. {341-342} Rich Epstein has had a couple of different approaches. He starts by attempting to make strict liability the rule in civil injury cases (i.e., you always bear the cost for damaging others, regardless of how hard you tried not to). To do that, he attempted, back in the 1970s, to work with the way we talk about accidents. We say someone caused an accident; that choice of wording shows that we place responsibility for the damage with the person who caused it. But we don’t. If we did, businesspeople would get blamed every time they drove competitors out of business, when we’re more likely to think that the inefficient competitor is the one responsible for his own failure. Granted, that’s no accident, but ... Epstein tried another approach in the 1980s. This time, he said that strict liability makes sense whenever people have property rights in the things being injured. First, I’m not sure how we can tell which things people have property rights in; and second, why must liability be linked to property rights? That would prevent people from suing when someone damages something that they don’t presently own but would have been able to own without the accident. For example, fishing companies lose money, and sue, when oil companies pollute fishing areas, even though the fishing companies don’t own either the ocean or the fish in it. Epstein wasn’t interested in strict liability for its own sake. He wanted to show why people shouldn’t be held legally responsible for not helping other people when they could have. He was thinking that, if you’re automatically liable for the injuries you do cause, then you could not possibly be responsible if you don’t cause it. Look at what happens when he applies his views to that imaginary situation where you help someone avoid injury and then try to get them to reimburse you for what it cost you to help. (See page 93.) He says you should get reimbursed. But why? Because we can assume that you and the other person had an implicit agreement, where they surely would have agreed in advance to repay you for your costs if they had known that injury would be the alternative. Yet how do we know that that’s the only kind of implicit agreement you two would have reached? It’s just as 148

reasonable to think you would have agreed to form a club whose members would look out for each other without charge. Epstein tried to use his “property rights” theory to answer those objections, saying that the person who could have been helped had no “property right” to receive the assistance that the other person could have supplied. {343} As mentioned a moment ago, that didn’t work. Next, he reached back to John Locke in the 1700s. Locke said we form a government to protect our natural rights (e.g., life, liberty, and property); government may take away some of those rights in order to do its job, but in that event it owes us something in return. For example, government can tax us to provide police, but should make the police coverage available according to the amount we’ve been taxed. This view led to a clause in the Constitution’s Fifth Amendment, controlling government attempts to take private property. Epstein tries to broaden this by saying that it’s unconstitutional, and a violation of natural law, to tax the rich in order to help the poor. In his “libertarian” view, government should provide nothing except the very basics, like police, army, and courts. This, he says, will meet the utilitarian goal of producing the most happiness for the most people. (See page 14.) {344} My responses: • If taking lots of rich people’s money for many purposes is arbitrary, then all the 20th century’s legislation on behalf of the poor is unconstitutional. If government has to tax the rich to keep the poor happy enough that they won’t rebel, isn’t that a kind of redistribution that the rich might approve? Here’s a weird abstraction for you: suppose the poor people couldn’t stand the rich people, and refused to do business with them. Then government could do its job of facilitating trade only if it taxed the rich and gave the money to the poor until the poor stopped feeling this way. I offer this one because I don’t think judges should always ignore bizarre philosophers when trying to solve real-world problems. (See page 340.) {345}

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Epstein would prevent poor citizens in a democracy from having much of a say in how their government should treat their rich people, and he doesn’t justify the upheaval we’d experience while switching to his proposed arrangement. Even if he were correct in claiming that libertarianism puts us all back closer to the original state of nature, where we would supposedly have our own lives, liberties, and properties without government meddling, I don’t think rich people can seriously argue that they’re financially disadvantaged by having to endure American democracy rather than being in a tribal arrangement. If I’m wrong in that, maybe we can find them a primitive tribe where they’d fit right in. What Epstein really wants is all gain and no pain: let the rich avoid both the costs of living in a place like America and the (presumed) discomfort of wearing loincloths in the rain forest. {346} A century after the Englishman Locke imagined us going tribal, the Teutonic tribesman named Georg Hegel imagined the opposite. In nature, he said, we’re not all independent; we’re at the beck and call of the tribal chiefs. You get modern rights and modern property, he said, only in modern society, which teaches you skills and gives you a broad opportunity to interact with others. If all these arguments failed, we’d still ask: who cares what happened back in the tribal days? What’s that got to do with now? Finally, who says a limited government is the thing that will make people happiest? {347} People are individuals. There’s no telling what will make them happy. It would be a miracle if a limited, libertarian government somehow managed to hit all the right buttons and maximize everyone’s happiness.

Most recently, Epstein argues that our moral beliefs grow out of human nature. He says human nature is primarily selfish, and therefore libertarian government would put the fewest restraints on our freedom. {348} But human nature has a lot of different aspects, some good and some bad. The

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mere fact that an urge (jealousy, for example) comes from human nature doesn’t make it a fit foundation for law. Let us review. Some thinkers start with a theory and then try to fit it to reality. Ackerman’s trip to Mars is an example. Others start with their individual reality and try to make it into a general theory that fits everyone. Either way, we respond by using philosophy to rip apart these theories. Of course, philosophy is what created the theories too, so it’s all a funny little dance. {349} Speaking of Dworkin, did I mention that I think he’s a turkey? In his discussion of affirmative action (see page 287), he gives the example of a slightly more qualified white person and a slightly less qualified minority person, both applying to an elite law school. He wants the white guy to be rejected, but he never stops to think what happens next. Let’s rehash the situation. If nothing else, it’ll give me an opportunity to utter ponderous phrases about “responsible black leadership” and “the aspirations of young blacks,” so as to underscore the gravity with which I weigh the concerns of underprivileged people appearing in my courtroom, not to mention my fairness regarding the guilt or innocence of the black criminal defendants whom I judge. (See pages 182 & 207.) I say that affirmative action at top schools does not increase the number of blacks in law school; it just shuffles less-qualified blacks from second-tier schools up to elite schools, and pushes some more-qualified whites from elite schools down to second-tier ones. I also say that affirmative action will increase the total number of black students only if schools at the bottom of the barrel practice it. I base these statements on the following assumptions, which I have not studied personally: • Highly qualified black college students do not change their career directions (from e.g., med school) when they discover that they may have a chance of getting into a top law school. That is, the existence of affirmative action programs does not increase the number of highly qualified black law school applicants. (Actually, I didn’t even think of the possibility that there might be additional highly qualified blacks out there somewhere.) 151

Prolonged higher black enrollment in elite law schools will not eventually stimulate the faculty at such schools to explore subjects or perspectives that might be of greater interest to black law students (i.e., that might persuade more black college students to apply to law school) or in which black students might be more likely to excel (with potential ramifications for the definition of a “qualified” law school applicant). No law schools will increase the total number of students enrolled in order to accommodate and absorb students admitted through affirmative action programs. Above-average law schools that have lost their qualified black applicants to the very top schools’ affirmative action programs will not more aggressively promote the law school option to black college students, for the separate purpose of maintaining a diverse student body, regardless of whether such schools also have affirmative action programs. Second-tier law schools have the same financial aid options as the wealthy ones, so that a black applicant who cannot use affirmative action to get into an elite school would always be able to afford another school instead. Blacks who get accepted, via affirmative action, into a school somewhat above the bottom of the law school pecking order would always have applied and gotten into at least one other school without affirmative action.

I admit that affirmative action programs at elite law schools may have some benefits. For example, I assume that the opportunity to attend Harvard may help blacks become more responsible leaders than if they had attended lesser law schools. They will also become more productive, within my definition of the term, if they get sucked into mainstream corporate-oriented elite law schools, especially if they have to take out massive amounts of student loans to pay their way, and thus find that they must earn high incomes to pay down 152

the loans over the next ten years – thereby insuring that they will not consider lower-paying kinds of legal positions that might directly serve the minority community, but will instead go directly into big law firms. In the end, there’s no stigma attached to being a highly paid lawyer for a tobacco company – but there is a very real stigma attached to affirmative action, and therefore I urge blacks to think carefully before using it. Again, I find it appalling that Dworkin did such a miserable job of thinking through his position on affirmative action. But that wasn’t my original point. My original point had to do with philosophy. Let’s see ... ah, yes, I was saying that moral philosophy often fails when you try to connect it to realworld legal problems. So does everything else, but that’s not relevant here, and neither is the possibility that moral philosophy may succeed sometimes. What I’m asking is, why should a judge like me, faced with an affirmative action issue, fiddle around with big-picture “abstract” questions, like what it means to treat people with equal concern and respect? The answer is, I shouldn’t – not unless I happen to find the abstract questions more interesting. Moving right along, I’m ready for another social issue, hoping once again to show that moral philosophizing doesn’t always help resolve problems. How about abortion? {350} This is a girl’s issue, so for the first time in this book, let’s listen to what a girl has to say. Judy Thomson is as good a candidate as any. She asks you to consider lying in a hospital bed for nine months, connected by tubes to another person who will die if you disconnect the tubes. I agree, it would be immoral to force you to lie in that bed; then again, except in cases of rape, nobody’s forcing a woman to become pregnant. For example, it’s not force when a husband insists that he’ll stay with his wife only if she agrees to bear his child, and then decides to take off with his secretary anyway; and since no physical force is involved in either Thomson’s metaphor nor in this hypothetical case, I conclude that her metaphor does not fit. My reply analogy would be this: a woman who seeks an abortion is like a person who puts someone else in mortal danger, or who starts to rescue someone and then stops, leaving the other person worse off. Not that I mean to assume that a fetus is a person (much less a person who was going along 153

just fine until this woman entered the picture and put him into mortal danger), or that every pregnancy is intentional. (Anybody care to try the analogy that says the fetus is like someone who bought a lottery ticket?) {351} And although I’m trying to cut moral philosophizing down to size, pardon me for having a few moral opinions of my own. For example, I think a woman has less of an excuse to contemplate abortion if the pregnancy comes from an extramarital affair, and I also think a child who comes from that kind of affair has a poor chance of growing up decent, and I hope none of my kids gets involved with a pregnancy under such circumstances. I’m feeling a sudden need to explain why I use metaphors or analogies to find a way through complex problems like abortion. Metaphor is a tool of practical legal reasoning. (See page 73.) As just seen, and as Hume observed 300 years ago, it merely produces a stalemate of opposing stories. (See page 95.) I say practical legal reasoning is better than Judy Thomson’s kind of moral reasoning, even though in this case they both use the same tools. It’s easy to get bogged down in these debates when you lack solid answers to important questions (e.g., on whether God exists and hates abortion, or on whether we have roughly the same number of abortions regardless of whether they’re legal or not). That is, practical legal reasoning can lead you into a morass. {352} It is fair to ask whether the Constitution requires judges to pretend that they know the answers to highly controversial social issues when they are so ignorant of such basic facts and when their methods are no better than the guesswork of moral philosophy. I guess this is just what we judges prefer to do. {353}

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Chapter Twelve Law Is Sort of Like Economics
It is indeed tempting to ask how economists can hope to explain the divorce rate when they cannot even explain [market] behavior under oligopoly. ... [But] [e]conomics does not have a predestined mission to dispel all the mysteries of the market. Maybe it will do better with some types of nonmarket behavior than with some types of market behavior ... – Richard A. Posner, Problems of Jurisprudence, page 369

Can Economics Explain Law? For starters, I offer a theory: whenever people have a choice (not counting people who are screwed up – e.g., drugged, crazy, or retarded), they choose the thing they think will make them most satisfied. {354} This includes people’s actions in legal contexts: in deciding whether to sue, for example, or whether to exceed the speed limit. Nothing in this theory implies that people’s “choosing” and “thinking” are always correct or even intelligent; the theory is perfectly comfortable with mistakes and impulse decisions. Thus, I assume that legislators choose the wording of statutes according to their own self-interest, which they often define in terms of votes and campaign contributions. Likewise, the people who join organizations that support one political candidate over another do so because they think they can get their preferred candidate to act in ways that will benefit their own interests. Frequently, this benefit comes at the expense of people who do not organize themselves into an effective opposing political force. {355}

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In this way, we get various statutes passed by the legislature. Think, if you will, of one such statute, on some subject or other. This statute will probably reflect the influences of various politicians and their supporting groups. Now imagine that some judge has to apply that statute to a particular case. The special interest groups would not have supported their favorite legislator if they had thought this judge would just invent a reason to ignore the statute. If the judge wants the system to continue to produce legislation that favors special interests, he’s going to have to enforce the statute as the interest groups have intended it. If judges didn’t insist on being independent of the legislators, special interest groups would just funnel their money to legislators, expecting them to exercise a favorable influence on both the laws and, indirectly, the judges. Under our system, by contrast, special interest groups must funnel money to legislators in order to influence legislation, and then they must also funnel money to lawyers in order to influence judges. This is a more divided system; it’s why we say we have a system of separation of powers in which checks and balances (but especially checks) help to maintain democracy. I think special interest groups are a good thing, so I see the judge as a key player who, by his independence, helps to maintain the whole ugly system. If the public weren’t so ignorant of the extent to which judges fail to enforce the laws consistently, then people wouldn’t think that they can rely on law when someone tries to screw them. You’re a lot less likely to engage in trade, travel, or other worthy actions when you realize the extent to which the laws leave you vulnerable. Legislators pass laws, and judges enforce those laws, in order to let us know that the legal system is there for us when we need it. Here are a few examples of how judges construe the laws in ways that encourage freedom of action: • they make people afraid of speaking up, for fear that they might be sued for telling the truth; they send the message that you can lose your life’s savings for being a Little League coach, if Spastic Johnny hits himself on the head with a bat and his parents sue you for it;

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in some states, they convict people for public intoxication when those people choose to walk home after a party instead of driving drunk.

Historically speaking, you may be interested to learn that, when our tribe first emerged from the jungle, we wanted our legislators to concentrate on the important things, like nuclear missile defense and maximum security prisons. Once these bare minimum requirements of the “night watchman” state were in place, however, we turned our attention to more picayune matters, and that’s when special interest groups began to have an impact on legislators; this is when judges became more important for sorting out the “everyday” gripes that people can afford to pay an attorney $100/hour to handle. Getting back to our economic theory, the judge will always decide cases in whatever way maximizes his own satisfaction. For example, it is in his selfinterest to make his decisions sound good. Stability is something that sounds especially good. {356} Thus, judges like to explain why their decisions enhance stability. They are very good at this. They’ve sure got me fooled: I actually believe that our laws are remarkably consistent and stable, even though I know that judges have continued to rewrite vast areas of law throughout the 20th century (see page 53) and that judges are forever changing the rules governing countless people, often right in the middle of the game (see page 50). As rational economic actors who try to maximize their own satisfaction, judges act in ways that destroy the fabric of society only when they find it in their self-interest to do so – as when, for example, they find it more rewarding not to rely on big-picture values like equal concern and respect. (See page 349.) I do not know how often judges’ personal self-interests conflict with the best interests of society. I also do not know how much wealth our society could produce. I do know that consistency in law is good, however, so I conclude that since our judges are remarkably consistent, they must be acting as though it were in their personal interest to maximize society’s wealth. Not that maximizing society’s wealth really is in their interest; just that it looks as if it were. Let me explain that “wealth” is not exactly the same as the “satisfaction” that I mentioned at the start of this chapter. Wealth is limited to things you can 157

put a price on. We measure wealth by taking the difference between what people pay for something and what they could get if they turned around and sold it. So if the Rolls-Royce you inherited from your dear departed Aunt Betsy becomes an antique, increasing its value by $15,000, then your wealth (and society’s) rises by that amount. If you decide not to sell it, but instead to keep it, the $15,000 increase exists, not in cash form, but in the satisfaction of owning an antique Rolls-Royce. You’re essentially paying $15,000 for that satisfaction. “Satisfaction,” however, is not really the point. Some people are never satisfied, but they keep on trying to scratch whatever it is that’s itching them. They’re willing to pay for things they believe may help to fulfill their desires. Now, we could observe that a person who can never be satisfied is the poorest person of all, but that’s not how economics works. Instead, at this starting point, we’re going to focus on your effort to be happy, not on your actual success at it. This may make no sense: it could be like being more impressed by the busy person than by the one who’s actually getting something done. If you wanted to use financial terms for emotional or spiritual concepts, you might say there’s a difference between (1) an assetoriented measure of satisfaction, where the people at the top of the scale are those who know how to be thankful for what they’ve got, how to really experience those things (such as the unbeatable feeling of a simple hot shower and a bed after a dirty, grueling day), and (2) an income-oriented measure of satisfaction, where you aren’t as worried about being happy (which may be something that you have no idea how to achieve anyway) as about scratching your perpetual itch. We are going to use the latter; that is, we will assume that the purpose of life is to try to satisfy every random desire, no matter how much time you can fritter away in that pursuit or how miserable it can make you. To explain my theory about the link between law and economics, I need to define economics in such a way as to make the existing justice system look OK. To do that, if you’ll bear with me, I will make a few more assumptions. First, let me admit that we cannot obtain any direct measurements of your progress toward satisfying your desires. We utterly lack the science of mind – not to mention the medical equipment – that we would need in order to 158

measure and analyze the thousands of desires flitting through an ordinary person’s mind during a given day. Therefore, we will adopt an indirect method of measuring your progress: we will convert everything to money terms. This is how we justify the transition from talking about satisfactions and desires, which belong in the realm of psychology, to talking as economists about wealth. And that’s where we lose track of happiness. We adopt this indirect method, as I say, because we want to measure progress, and not because money really has much to do with our most important desires. As we know, it does not. A few examples may remind us of that fact: • • A child’s love is simultaneously free and priceless. Ann flings the damn diamond ring into the lake, not because it has suddenly lost its monetary value, but because, to her, it now symbolizes something non-monetary that makes that monetary value seem puny, even repulsive. Peter, a highly paid executive, and Joey, a seventh-grader, are both equally nervous about speeches they have to give tomorrow.

Money really has very little to do with what’s important. We have arranged things so that we need money to obtain things, including stuff that keeps us alive and makes us laugh; but money can’t buy us love – and beyond a certain minimum level, it does not seem to make people much happier. Life – in either its length or its quality – is not a freely convertible currency; you cannot switch your dollars into or out of it at will. Another assumption we must make is that the whole of society, or any group, is no greater than the sum of its parts. This is a very dubious assumption. We contradict it all the time. To use the previous example, Peter and Joey get nervous about their speeches to groups even though they could quite comfortably utter those same words to each member of those groups individually. We treat corporations, churches, and street gangs as entities, not merely as collections of individuals. We all know the experience of feeling pride, strength, or camaraderie by being part of a team, a city, or a nation. We 159

have heard, and seen for ourselves, that people behave differently in groups than alone. These are the things that experience tells us. Yet we will assume, here, that the emphasis in such experiences should be, not on the group that makes these feelings possible, but on the individual who has the feelings. This is like trying to comprehend the beauty of a song by discussing each of its individual notes. We constantly talk about “society,” but now we are going to pretend that’s just another way of saying “all of us individuals.” With these assumptions, we have what we need to justify the conclusion that we can, and should, measure America’s wealth by adding up the dollarmeasured progress of its citizens’ efforts to satisfy their internal desires. We are now ready to proceed – with the caveat that our unrealistic starting assumptions will require us to rely on additional unrealistic assumptions at various points along the way. This is the first way in which our system of economics really is like our system of law. {357} Generally, we see that trade increases wealth because it gets things into the hands of people who value them more highly. For example, if I don’t get any satisfaction from having Aunt Betsy’s Rolls-Royce, I might decide to sell it to someone who will. I create wealth by selling it at the market price; I create additional wealth for myself, but no additional wealth for society, if I sell it above its market value (because what I gain, the buyer loses); and I create wealth for someone else, but not for myself – and, again, neither a net gain or a net loss for society – if I give the car away because I have adopted a new “easy come, easy go” philosophy. (Economics says that the car would become worthless if everyone shared it freely.) Law encourages trading, and thus indirectly helps to increase society’s wealth, by protecting the property rights and contract rights of buyer and seller. Indeed, law is preoccupied with society’s wealth to the point of disregarding fairness: it encourages transactions in order to create wealth for society, but (except where specified) does not care whether a one party to a transaction immorally misrepresents the true market value of an item in order to trick another person out of his money. You’d think that an economic system that treats society’s wealth solely as the sum of its individual 160

members’ wealth would be concerned with the welfare of those individual members, but now it seems that the wealth of those individuals counts only in the aggregate, just as it might under a communist system. Using trade as an analogy, we can also describe other activities as economic transactions, and can use economic theory to measure their effect on wealth. For example, a car accident is not a transaction between a buyer and seller, but you could say it was a tradeoff – or at least it was the result of a tradeoff – between (1) what the person thought they were gaining by driving that way (or by using a defective car, or whatever) and (2) the tiny probability that any harm would come of it, and the expense and hassle of doing things some other way. Now, everyone has to take some risks sometimes, so if we’re calculating the liability of the driver who took a chance and caused an accident, somehow we have to compare his decisions against the reasonable risk percentages for an imaginary “normal” driver in these very circumstances. God only knows how we’ll do that. (For example, will we say that a normal driver wouldn’t have cut through the parking lot, or wouldn’t have gone as fast through the parking lot, or what?) Then we have to decide how much a real-world driver will be allowed to vary from that norm. Then, if our actual driver went beyond that limit, they were in the wrong. Busy judges are probably not going to get into these detailed calculations and do them right, not unless they happen to be interested in them, and juries certainly aren’t trained in how to calculate probabilities. (See page 213.) So this is basically just one more complication they can fumble around with and muck up. As such, it represents an advancement in bogus precision over the way the judge would decide what happened in car accident if he didn’t have the benefit of economic theory. {358} If you like this example of the technique of economic analysis, you’ll be pleased to hear that you can apply it to lots of areas of law. I wrote a whole book about it. Two books, in fact. An especially interesting application of the technique is to analyze the legal system itself, or at least the part that says judges should be guided by the opinions of previous judges in similar cases.

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Consider, if you will, the following course of events. First, let’s say you’ve filed a lawsuit in a particular area of law, and you find that there have been a lot of recent decisions by other judges in that area. The more recent opinions you’ve got, the more likely it is that some judge has recently discussed some of the very facts and legal arguments that you’d be using at trial. So you and your adversary will probably be able to look at these previous opinions and make a reasonably good guess as to what will happen if you take this case to trial. {359} Given the huge costs of trial, it’s almost certain that the two of you will settle out of court. The same thing is meanwhile happening with all the other people who are filing lawsuits in this area of law. So whereas everybody used to be going to trial in this area (hence the many recent opinions), now everybody’s settling. If this keeps up, eventually there won’t be many recent opinions in this area, and then people will start taking cases to trial again to see if their odds have changed from what they used to be. That’s not an economic analysis. That’s just how it works. Now I’ll give an economic analysis, and you can see for yourself how much more light it sheds on the whole process. Let’s begin with the assumption that the legislature tends to make precise laws only when interest groups force them to. The rest of the time, using economic terminology, it’s in the legislator’s self-interest to do what’s in the interest of the general, non-lobbying public. In that latter situation, the legislator knows that the public interest is best served – that is, his own interest is best served – if he just stays out of it and lets judges invent the laws themselves. We invented legislators so that judges would sort out the issues that lobbyists don’t care about. The thing that makes unelected judges so good at inventing laws on behalf of the general public is that judge-made laws help the public maximize its wealth; they do this by penalizing behavior that is economically inefficient. Judges are eager to help the public become more prosperous because there’s nothing controversial about that and, of course, noncontroversial means status quo. But please don’t conclude that judges would reward economically inefficient behavior that happens to keep things nice and stable. {360} If they did, the people who lost those cases would appeal to a higher court, which in most cases would not overturn the lower court’s decision; or they’d form interest groups to yell at the legislators and, by their very existence, would probably stimulate the creation of opposing interest groups, so in many cases 162

they’d probably get nowhere in the long run; or they’d join the powerless poor, in which case economic inefficiency could persist as long as those people have no genuine recourse through which they might seek a more efficient solution. I didn’t say that right. What I mean is that legislatures use taxes and other means to redistribute wealth from rich to poor, and no doubt that’s another thing that most voters like about having a legislature. Without a legislature, the rich would assert that they got that money from the poor and now they’re going to keep it. The rich find that harder to do that when a legislature goes prowling around, because then they have to organize powerful interest groups and buy the legislators off. The goal of a legislature, I’m saying, is to rearrange wealth, not create it. Judges, not legislators, are the ones who make the world safe for the creation of wealth in the hands of people and their lawyers. If we reduce everything to economic terms, then wealth-creation is the only social value to which judges can make much of a contribution. Wealth, not justice, is the standard by which we should decide whether judges are doing a good job. Presto! The goal of achieving justice for the individual has become transformed into the goal of maximizing social wealth. {361} Our courts are valuable to the extent that they are contributing to society’s total wealth. (As noted on page 358, that wealth remains the same regardless of whether one party takes advantage of the other.) It is beyond the scope of this book to explain how we might actually measure the courts’ contributions to society’s wealth, or to assess the implications of a political theory that converts the needs of the individual into group terms. I think you begin to see the merits of the economic approach. Once judges decide that their purpose is to maximize society’s total wealth, they just have to sit down and apply complex mathematical rules for which they are not trained. The judges will apply these rules in a rigid, logical method – almost like applying rules of tax law. (See page 57.) This attempt to use mathematical economics in law is not like the overdone formalism I was complaining about earlier. (See page 61.) Anyway, the rules will come from economists who, as scientists, can be expected to continue to debate and change them without warning. This will promote stability, in the sense that 163

ordinary people will be able to understand why the rules are changing and can thus more easily adapt themselves to the new concepts. If I may use a phrase that could come straight out of Bill Blackstone’s work in the 18th century, I like to think that in this way economics “will express and perfect the inner nature of the common law.” Some might say that you can’t reduce thousands of rules of law, and millions of cases, to a little list of mathematical principles. But when you really understand those mathematical principles, you begin to see how much they can explain. Sometimes we may have to describe one type of case as though it were a different kind of case before we can apply the rules properly – like that example I gave on page 357, where we interpreted a car wreck as though it were a contract – but overall I think this approach would make it a lot easier to understand law, and to teach it. {362} Some people might say this is a lot like Socrates’ idea – considered absurd by my idol, Ollie Holmes – that we can cut through all this superficial chaos of our daily world to discover deep principles. (See page 15.) But that’s OK: that’s what science does. “Positive” Problems Critics reject both the “positive” and the “normative” parts of the theory I just presented. The positive part is where I describe the roles of legislators and judges. It’s “positive” because it posits a description of the way things are, as distinct from the “normative” part, which lays down a norm on how things ought to be – saying, that is, that law should concentrate on maximizing wealth. Here, I’ll address criticisms of the positive part. These criticisms are basically that economics doesn’t work and that, even if it did, it’s the study of markets, which leaves out all the non-market things we expect law to address. {363} I’ll respond to these criticisms by starting with a more detailed description of economics. As noted above, economics starts with the assumption that people always try to maximize their satisfactions. This leads to lots of theories, such as the “law” of demand, which makes observations about things like the relation between an item’s price and its availability – for example, that if the world 164

discovers that it has a lot of something, sellers will outnumber buyers, and the price will drop. These theories aren’t just armchair philosophizing: economists gather data on them, and they seem to be true. Many of them aren’t as simple as they seem, so economists have to refine them with additional assumptions and theories. Those assumptions and theories have multiplied. {364} It has now reached the point where an economist can find some explanation for almost anything that happens in markets, including things that seem to contradict economic basics like the law of demand. When your theories allow you to prove almost anything you want, they start to sound more like a religion than a science. When you can’t prove that a theory is wrong, you never know whether there’s another theory that might be more accurate and complete. Example: for thousands of years, everyone accepted the theory that the Sun went around the Earth because it explained most people’s experience with sunrise, sunset, etc. Here are some indications that economics is half science and half guesswork: • As I say, economists typically test their theories by gathering a lot of data on them. Unfortunately, you can’t bring an economic or legal situation into a laboratory, put it in a test tube, change it, and see if it still works the same. Instead, economists make do with second-best: they run imitation experiments, where they bring in the data they can get, examine it statistically, and make assumptions about everything else – that is, about most of life and the world. As in religion, economists find themselves much more celebrated for finding something that seems to prove rather than disprove that economics is Truth. {365} In some minor ways, economists have cooked up various financial toys that help in areas like banking; but compared to sending someone to the Moon, this is not very dramatic proof that this particular “science” knows what it’s doing.

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Even allowing for our definition, which excludes genuinely crazy people (see page 353), we see that people often seem to behave irrationally. A family, finding a starving man, might offer him some food. Yet he might refuse. Why? The answer takes psychological inquiry, not economic study. Possible explanations: he might fear they’re trying to poison him (because someone else just did), or the kind of food might offend his religion, or he might be too proud to accept charity. You need to know the reason before you can predict how he’ll behave if a different family offers him a different kind of food. In short, we can describe almost anything in economic jargon, but the rules of economics do not normally fit the seemingly weird ways in which sane people might behave. As noted above, we do not have the kind of science of mind it would take to study such things well or on a large scale; therefore economics will probably always be playing catch-up with the ever-changing real world. {366}

Despite these comments, I’m going to insist on calling economics a science – and a better one than psychology, which is partly to blame for inventing tests like the LSAT that send people like me to places like Harvard. Economics can’t tinker with rats in a cage, but it sure does throw around a shitload of data, and therefore I feel it’s superior. Besides, with or without the numbers, economics has some interesting theories. I don’t think Marxist theories could ever be this interesting, even if I were to make equally huge assumptions on their behalf. And I can certainly assure you that I have studied astrology enough to know it’s a joke, in case you were interested in my opinion on how economics compares to palm-reading. What makes economics interesting to me is its promise of reducing all the world to a small number of mathematical principles. That’s what sciences like physics do. This is not “reductionism,” which is a word that should be used only for “unsuccessful efforts to explain one thing in terms of another.” Economics is not an unsuccessful effort to explain behavior in terms of maximizing satisfactions, and I am not conducting an unsuccessful effort to explain law in terms of economics. Not at all. These efforts will be “unsuccessful” only when we give up, which won’t happen any time soon. For an example of true reductionism, consider the attempt to show that ideas in our minds are ultimately a matter of molecules in our brains. 166

I can sense that I’m being ridiculous, so maybe I should change strategies and try attacking the concept of science itself. Along those lines, I just want to point out that other kinds of science, like astrophysics and geology, can’t be taken into the laboratory either, and therefore are just as hokey as economics – so it would be just as reasonable to base our search for justice and the operation of our entire society upon them, too, if we could think of a way of putting justice and society up in the stars or down in the ground. Another problem with science is that you can’t prove theories like evolution. (I don’t actually use the theory of evolution much in my courtroom, so that example may not be the best for proving that science can’t help law.) {367} Also, sometimes experimenters make mistakes, and economists do conduct experiments; so there’s not really that much difference between the reliability of, say, chemistry and that of economics. While I’m at it, let me point out that you shouldn’t reject economics just because common sense says it is nutty; after all, common sense also rejects the theories of quantum mechanics, which we have reached through decades of careful scientific study. I mean, if common sense doesn’t understand quantum mechanics, what good is it? I do think sciences that try to understand people’s behavior are important. Economics is one such science. Behavior is often baffling, and economics assumes it’s rational, so economics likes to finesse the matter by saying that there just must be a reason for this behavior somewhere, although economics itself may not be able to supply that reason. Given these inauspicious roots, economics of law can’t help being a pretty lame field, but its not the only one; behavioral sciences are generally useless for such purposes. Examples include “psychology of law” and “sociology of law.” So instead of asking myself why I work all day to keep building up a legal system that a wide variety of social scientists can’t make sense of, I believe I’d prefer to add “economics of law” to the list of unproductive attempts. Who knows? This might be my best shot at becoming one of the great pioneers in Western legal history, like the guys whose errors I summarized in the Introduction. (See pages 1-23.) Some people think “economics” means “the study of markets,” so when you start studying nonmarket behavior, you’re not doing economics anymore. 167

{368} The flaw in that reasoning is that economics doesn’t mean anything more than “the things that economists call economics.” You know how the members of a religion are the ones who get to decide who’s a believer and who’s an infidel? Same principle here. I have learned some things about economics, and I want my approach to law to sound like a science, so I’m entitled to say that I’m doing economics. I grant that, historically, economists focused on markets rather than nonmarket situations, but that’s because they could get lots of data on markets and because experts in other fields – judges, for example – were not interested in markets, as I am. Also, economists were able to talk persuasively about “most” financial transactions and make their vague generalizations sound scientific because, after all, their examples and studies were full of numbers and graphs, unlike the vague generalizations that people in other fields might propose about “most” relationships or “most” trips to Jamaica. {369} Now, some people say economists won’t have much credibility if they go fiddling around in new fields, like law, when they can’t even figure out the answers to important questions about markets, which they’ve been studying for generations. The error in this view is to trust dictionaries, which would lead you to think that economics is only the study of markets. Who knows? Maybe economists have accomplished most of what they can accomplish in learning about markets. Maybe it’s time for them to pull up stakes and migrate to other fields, where they can build whole new kinds of graphs and discover whole new kinds of questions that they can’t answer. There are probably some lessons that baseball or basketweaving could teach to judges, so there must be some that economics could teach too. {370} People make a number of criticisms of the way economics of law works in practice. Here are some: • Criticism: there’s no practical way to get the data you’d need to decide whether a given legal theory maximizes wealth. Reply: you can get as much data for this as for any other kind of question in economics. The real problem here is that lawyers will be lawyers – that is, we who start in law and then dabble in economics still have the lawyer’s tendency to speculate about whether a legal theory

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maximizes wealth, instead of rolling up our sleeves, gathering the data, and doing the hard calculations. • Criticism: economic analysts of law have mistakenly “proved” that inefficient legal theories are efficient. Reply: same as above. Economics is sloppy enough without this kind of thing. {371} Criticism: even some economics-of-law devotees, like me, have admitted that the theory I laid out above (see pages 353-61) is false or unverifiable (see page 364). Reply: I agree that this theory does not explain all behavior in our legal system. The theory may explain most legal behavior, though, or at least identify one of the many factors behind law. In short, it is a potentially useless theory. Given that admission, I certainly hope you don’t feel you’ve been wasting your time in reading all this stuff about economics, however. In any event, we will continue to discuss it. {372} Criticism: How could wealth maximization have become the hidden but real principle that lies beneath judge-made law? It could not have happened by some random, accidental process, because not enough time has passed for a random process to work out the orderly, nonrandom judicial behavior we see today. It also could not have happened by a deliberate process in the minds of judges, because when judges think deliberately about what they’re trying to do, they think in terms of deciding a case properly, not about maximizing their own wealth. Reply: judges pursue their own self-interest by deciding other people’s problems properly. The rule by which they decide other people’s goals (but not their own) is wealth maximization. That’s about as clear as I can be on that. Criticism: the law developed by judges over the centuries does not use the language of wealth maximization. Reply: the language of wealth maximization is the language of economists, but different people may use different words for the same thing. “Justice” really does mean “wealth maximization.” {373}

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Criticism: it would be impossible to make wealth maximization the sole goal of law, and it would be disgusting to try. Reply: someday this area of study is going to have an Einstein who pulls it all together, and then it will make sense. Criticism: if you try to use a theory to explain something, and the theory doesn’t explain it, then you don’t keep on trying to use the theory. Instead, you renew your search for a theory that works better. So we should drop the attempt to force-fit economics into law. Reply: you can’t use economics to explain law, but it’s still useful to try. Doing so gives you an irrelevant way of reorganizing law’s contradictory rules into something that looks intelligible but isn’t. {374}

Scientists are searching for other theories, but haven’t found any helpful explanations for our strange legal system. In the meantime, I intend to keep waiting for the day when some new branch of science will clarify everything. I figure it may have some use for what I’m doing with economics, so that’s why I piddle around with my studies of the occasional things that this theory does seem to explain. Since I can keep myself occupied this way, I conclude that the economic theory of law, involving wealth maximization, is the theory that a person should use to analyze law. “Normative” Problems As some of my comments have just shown, the question of which theory we have used to understand law tends to get mixed in with the norm-oriented question of what theory we should use. Nevertheless, I will try to keep the two separate. {375} Here are some normative criticisms of the wealthmaximization theory of law: • The wealth-maximization theory just accepts whatever exists, in terms of people’s wealth and opportunities, and goes on from there. But that attitude would accept an economy that began with slavery. {376} The theory might show that a modern slave economy produces less than a modern free one – that the latter maximizes wealth, and therefore is right. But what if it doesn’t? Suppose slavery were legal, but only for 170

people who are so useless that this is the only way of getting them off their butts. Would Americans accept slavery in that case? I don’t think so. We already fought the slavery war once. Admittedly, we tolerate imprisonment, even though it’s not productive, but that’s different. It’s different because it’s a form of slavery that we are willing to accept. Same thing with forcing people to fight and die in wars they don’t believe in, or the bankruptcy court decisions that give hopeless people no way to start over. • Wealth maximization treats people like mere pieces of the larger group, or pawns in the big picture. {377} That’s not our style. In America, we believe that each person is important, no matter how unimportant we consider them. So you won’t find Americans putting anyone into slavery, except when it’s an acceptable kind of slavery, like the ones I just mentioned. This shows we are decent. Ultimately, our decency comes from our gut instincts, which somehow differ from the gut instincts that insure the survival of the fittest, on which we proudly base our market economy. Our morals tell us that people are entitled to a fair hearing, even when it might be more productive – i.e., more wealth-maximizing – to let things slide. This is different from my statement that judges often have to let things slide because that’s more economical for the judge’s limited time and patience. (See pages 53, 97 & 333). If all we’re thinking about is what works best, then we will probably find that sometimes torture is quite effective. I am a pragmatist, and therefore am interested in what works best. (See pages 153 & 223.) Torture is immoral. Physical torture, at least. So I get my morals from someplace other than my pragmatism, at least when my pragmatism is just too ugly to believe. Mormons might be better-behaved citizens. If we’re just concerned with what maximizes wealth, maybe government should subsidize Mormonism. By contrast, Rastafarians are a pain in the ass. I’ve known several of them in my courtroom, and they really are. {378} They probably cost more than they’re worth. In terms of wealth 171

maximization, we should outlaw their religion. In other words, if you’re concentrating on wealth-maximization, you can’t necessarily justify separation of church and state. But we’ve already fought those wars and learned those lessons too. • If civil liberties must stand or fall according to whether they produce wealth, how do we do the wealth calculation? On one hand, if we give Rastafarians the right to their beliefs at the outset, but let them sell those rights if they want to, they’ll probably never sell at any price. In this case, we’ll always have Rastafarians. On the other hand, if we require them to purchase the rights to believe what they want and be a pain in the ass, we’ll probably set the asking price far above what they could afford. In this case, no Rastafarians.

Maybe we do find that freedom of religion and other rights provide a wealthproducing solution. Maybe we wouldn’t allow such rights, and maybe we would allow torture, if we thought that would maximize our wealth. {379} Right now, though, we’re fat and happy, so we’re not under pressure to reconsider anyone’s rights, except criminals, and people who get sued for speaking freely, and anyone else who goes to court for some reason, because people are finding that their legal rights are being reconsidered all the time. (See page 356.) So maybe we allow equal rights for everyone because we’re good people who believe in freedom except when the goal of maximizing our wealth suggests a different course of action. {380} The rich don’t tend to prefer equal rights. If you’re rich, you want to be able to buy things, including things you don’t really need that maybe some poor people need desperately. We like to see the rich spend a hundred times as much as the poor on their homes, clothing, meals, and everything else because this drives up the market prices on the things they like. As the RollsRoyce example showed (see page 356), society’s wealth increases when market prices rise. That is, the more difficult it is for the rest of us to buy things, the better off we are. We are better off because society’s wealth is being channeled into important things, like million-dollar mansions for the elite. We calculate wealth this way because we are like an accountant, focused on the bottom line, who tells the boss that the company is doing great because the money is rolling in and expenses are dropping – which, the boss 172

thinks to himself, is just what he expected when he started selling the company’s buildings and equipment and laying off workers. Every now and then, the rich overplay their hand, and then the rest of us get mad and start yelling, The market be damned, we want equal treatment. It’s not easy for equality or other ideals of the American Revolution to win out over the ideals of capitalism, but sometimes the law does stand up for the little guy who threatens the whole status quo; at such times the law may say that wages can’t drop beyond a certain point, or that medical care has to be available. {381} This is the “redistributive” function that the legislature can provide on a massive scale, beyond anything that judges can do. (See page 360.) So while I don’t make this point, it does seem that the laws invented by judges are best suited for one-on-one street-fighting, whereas the legislature is the place that can turn lofty ideals into realities for us all. My overall point is that economics explains law, and law restricts the ordinary workings of economics, although that seems contradictory. In more specific terms, I can’t quite figure out how the law maximizes society’s wealth when it clips the rich people’s wings. The closest I can come is to admit that maybe getting rich doesn’t maximize society’s wealth in the first place, if you get rich through transactions that hurt others. (See page 357.) On that subject, I like to think of most wealthy people as being like a guy who started a little bicycle shop and somehow converted it into a multibilliondollar global enterprise by sheer hard work and ingenuity. This, to me, is a lot more appealing than the old saying: Behind every great fortune, there’s a great crime. {382} I am vaguely aware that there’s a difference between what capitalism would prefer and what the Declaration of Independence would say, although I tend to submerge this awareness in a murk of random ideas that I’ve picked up from assorted scholars. On one hand, I think the person who makes money should have the right to spend it as he wishes. This necessarily favors the rich over the poor: it will drive the prices of many things beyond the reach of most people. On the other hand, if our nation is built on capitalism alone, then our law can’t very well claim to give equal rights to everyone regardless of wealth. Even if you do increase society’s wealth more than someone else

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does, you might not qualify to have more rights than someone else. Then again, you might. I’m not sure. I guess it depends on what we’re talking about. I believe in generosity: we all know it’s better than piggishness, at least when the piggish person is someone else. But I don’t believe in generosity to the point of saying, “From each according to his ability, to each according to his need” – at least not unless the legislature exercises its ability to redistribute money from the rich to the poor. Maybe what I believe is that people have a right to be selfish, to make and spend their own money in whatever way they wish, except where a judge feels otherwise. Personal, selfish wealth-maximization is a good thing in many ways. In the U.S., for example, we have free markets along with our other freedoms, and people from less free countries are just dying to move here. It seems that our free markets are responsible for creating our wealth, and our wealth is what makes us able to afford all these civil rights. So we base our civil rights on our wealth; hence, if we ever stop being wealthy, we’ll stop having civil rights, and it becomes terribly important to keep becoming wealthier, no matter what. {383} Back in 1973, Brian Barry tried to get us off this merry-go-round. He philosophized that maybe money didn’t really motivate people. He suggested, for example, that people might still seek jobs as business managers if they earned lower pay, just because there are some people who like to be the boss and are good at it, and there are others who are glad to avoid those headaches. He also said that, instead of having to pay people a hefty salary to handle undesirable jobs like collecting garbage, we could just have a national service force in which all young people were required to serve for a couple of years, and it would be good for them to learn a little bit about what it takes to keep our streets clean and our bridges painted. {384} This, to me, is nuts. It is communism; it is a formula for disaster. Capitalist theory tells us that communism should fail; communism failed; so despite the fact that capitalist economics is not a genuine science (see page 364), we should feel more confident about it, and therefore should dismiss theories like Barry’s.

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In other words, I say we should start with the assumption that money motivates people, even though capitalist economics begins by defining money as something that has value only to the extent that people believe in it. I haven’t bothered asking myself whether Barry was saying that if you really want to find what motivates people, you have to figure out what prompts them to believe in money in the first place. Why do some people keep on pursuing money when they already have more than they could ever spend, and why do others want to go home from work at 4 PM even though they could make time-and-a-half by working until 8? I have no clue. I don’t care that paper money is ultimately just paper, and I don’t care to ask myself whether the people with their heads on straight are the ones who leave at 4 to see their kids, and that these are the kinds of people whose values should be steering our economy. I’ll readily admit that these people and their kids do steer the economy en masse, as consumers; I just won’t admit that any one of them, struggling to keep up with the bills, would be a better source of sensible values for our society than a corporate big shot who adds huge numbers to the bottom line of society’s accounting sheet. {385} In a more traditionally communist vein, Richard Rorty speculated that it might be good if some country made everyone’s income the same, even though there’s no theoretical reason why this should be good. {386} I acknowledge that this is a lot like the non-linear thinking of a pragmatist like Holmes (see page 222), but it doesn’t always make sense to change things just for the sake of change. The problem in this particular case is that people have already tried this, and it doesn’t work. I’m sure there’s a country where they have given everyone the same amounts of money or other incentives. {387} I disagree with Barry and Rorty, basically, because they just don’t know what experts like me know about economic science. I have now laid the groundwork for my suggestion that maybe the best thing would be if governments started to cut themselves back to the minimal “night watchman” level. None have done it yet, so we don’t know what would really happen if they did. (See page 355.) I think that’s probably when you’d see real wealth maximization. Since we haven’t yet run that experiment, I can’t wholeheartedly advocate wealth maximization. Better to move carefully in that direction and observe the results as we go. My idea of “caution” in this regard would be to just go ahead and make wealth maximization our ordinary 175

way of doing things, except where someone can prove a better reason to do things some other way. I suggest this because I’m tired of “jurimprudence” – i.e., non-pragmatic legal philosophy. So let’s take another look at how the principle of wealth maximization might guide judge-made law. First, the Constitution plainly rejects the worst aspects of the principle, and it also sets out the rights that the judge must enforce. (See pages 375-79.) {388} Also, as I say, it’s up to the legislature, not the judge, to redistribute wealth. (See page 360.) I suggest that the judge is most likely to want to use the wealth maximization principle in situations where economics is already a source of guidance. For example, let’s say there’s a dispute between a landlord and a tenant. The dispute centers around the theory that the landlord should fix the place up if it becomes disgusting or dangerous, even if the lease doesn’t require him to do so. The judge is going to have to do some research to decide whether the theory applies in this case. The research will include finding out whether the tenant needs the protection of this rule, and whether forcing landlords to keep their properties in decent shape will require them to raise rents to a point where poor people won’t be able to afford them. This is not an allocation-ofwealth question that the legislature should decide. No, it’s actually a situation in which the judge could rephrase the problem in terms of wealth maximization. Of course, the economic research necessary to answer the question may be difficult, the judge may have no training in it, and he probably won’t have time for it. I only offer this as an example of how legal philosophy can become more practical. Maybe the best way to approach wealth maximization is to use the Pareto principle, which asks whether a transaction is “Pareto superior,” i.e., it hurts nobody and helps somebody. If you look at things from a before-the-event perspective, you have to assume that all agreements are Pareto superior: both parties think they’re getting something out of the deal. {389} After the fact, of course, one or both parties may feel very differently. Now, the whole point of Pareto superiority is to make sure that no one comes out worse off; but if we ignore that and just use the concept as though it were intended to examine matters before the fact, then we can claim to be using an 176

economic principle to support the view that you ought to hold people to their agreements, regardless of how things turn out. So the tenant in my example should have gotten this rule in writing – that is, we shouldn’t hold the landlord responsible for fixing the place up unless the lease says so explicitly. This is how Holmes would have decided it. (See page 18.) {390} You can use my modified concept of Pareto superiority in another kind of situation where the economic principles are pretty close to the legal principles: liability. Before the fact, the judge – or I guess we’re talking about the legislature now – adds up all the costs of all the expected accidents, and figures out all the amounts that people are expected to pay for their insurance premiums, and so forth. Let’s say this calculation shows that the way to maximize wealth is to decide a certain kind of liability case by a negligence principle (i.e., the legislature tells the judge to figure out whether you actually screwed up) rather than a strict liability principle (i.e., the judge is going to decide as if you screwed up, regardless of whether you really did). This calculation says, in other words, that in this particular kind of case, total social wealth will be maximized by a negligence approach (which makes life a little easier for the accident-prone, whom the law does not automatically blame). Of course, society may have to pick up the tab for the catastrophically injured people who aren’t covered by their own insurance and whose negligence lawsuits fail to prove that the other guy was at fault. So does this maximize society’s wealth? I’m not sure. I think someone should study this whole proposal carefully, figure out the mathematics and science behind it, and see if maybe they can use it. {391-392} Judges sometimes think they’re following the principles of “utilitarianism” – i.e., maximizing happiness – but you sure don’t see these judges saying that robbery is OK if the pain suffered by a victim who didn’t even miss the stolen goods was less intense than the pleasure the robber experienced in getting those goods. What these judges are really doing is applying my wealth maximization principle, weighing what society as a whole got out of the deal, and concluding that society loses something (e.g., the expense of requiring property owners to install security cameras) when it lets these bad players go creeping around. 177

Overall, wealth maximization encourages productivity and cooperation rather than the destructive selfishness that sometimes comes with utilitarianism. But it doesn’t always do this, mainly because luck – including the luck of being born in the right place, or with the right genes – is such a big part of who wins and loses in a given transaction. So wealth maximization isn’t really a good principle, and pragmatism is all we’re left with. {393}

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Chapter Thirteen More Ways to Misunderstand Law
[W]e are selfish, individualistic animals ... our altruism is limited; few of us are capable of prolonged heavy altruism toward strangers. People vary in their mixture of selfish and altruistic qualities [however], and perhaps the mixture can be influenced to some extent. – Richard A. Posner, Problems of Jurisprudence, page 417

Legal philosophers tend to dislike the three perspectives I’m going to consider here – literary, feminist, and communitarian – because these perspectives suggest that it is mistaken to treat law as a unique field. The Literary Perspective The study of how to interpret literature doesn’t teach us a lot about interpreting law. Statutes and literature are just too different. {394} Literature lasts for centuries, mostly because it’s written in a universal style or about subjects that matter to people everywhere. You can’t write many statutes like that. Statutes have to be specific and focused to such an extent that they bore even those who love to read. The story is slightly different when you compare literature to judicial opinions. You can find some semi-literary opinions, like Holmes’ dissenting opinion in Lochner. {395} The literary aspect of that particular opinion comes from the use of imaginative techniques like metaphor. (I take no position on the question of how many hundreds of wannabes have tried but failed to imitate the skills of those few judges who do have some genuine literary ability.) 179

You can find some good literature on various subjects relevant to law. One of my favorite examples is Euripides’ Hecuba. {396-399} It tells a story of murder and politics, and incidentally passes along some historical information about ancient Greek law. For instance, it quotes King Agamemnon as saying that, basically, justice is on the side of the slave named Hecuba, but that public opinion is against her. Therefore, he decides he can’t help her. This is what a typical American judge would do. She then obtains private revenge against the man who wronged her, and when that happens, Agamemnon tells the bad guy that he deserved what he got from her. This may seem to send the message that the best justice is the justice you make yourself, but I interpret it as the transition from pure revenge, which is a direct part of people’s experience with other people, to a system in which public opinion and politics influence the application of laws. {400-403} Another interesting piece of literature is Manzoni’s I Promessi Sposi. (In case you didn’t notice, I read it in the original Italian.) It’s a story of a town in the 17th century that’s completely controlled by the big bad man. Our hero can’t do a thing about that, and in the end you get the impression that only religious faith can help people cope with the frustrations of the town’s corrupt, useless legal system – and also that, sometimes, God might help the situation a little by inflicting his true law of nature on the bad guys. Then there’s Shakespeare’s King Lear where, again, the divine law of nature speaks, by granting victory in combat over a jerk. But nature in King Lear is so nasty that you’re not really sure you want to be associated with its kind of justice, so you tend to welcome the useful role that positive law (growing out of ordinary customs) plays in setting matters straight. {404} The Feminist Perspective Suppose we stereotype: let’s say men like technicalities, rules, abstract principles, and drawing a hard line on things, and women prefer fairness, flexibility, attention to the unique details of each case, and a softening of the lines. You certainly see this stereotype in literature that discusses trials and other legal events, and it also appears in some feminist legal writings. {405} (Paradoxically, if the “feminine” stereotype is true, it might work against 180

women. Applying the “male” approach – that is, using strict rule-oriented judging – may be less likely to play favorites than is personal discretion, which tends to favor the status quo.) Applied to jurisprudence, the male stereotype conforms pretty closely to legal positivism, and the female stereotype contains much that is like natural law. In the worst cases, the one goes into extreme harshness, and the other into total disorder. A mature legal system should mix the best of both, even to the point of having professional (system-oriented, masculine-version) and also non-professional (society-oriented, feminine-version) judges. But I still don’t think there’s room for someone else to take a crack at questions that judges like me don’t know how to answer. (See page 233.) Let’s move from abstraction to reality. Do men and women really affect law differently, along the lines just suggested? If so, today’s greater involvement of women in the traditionally male legal system may eventually enforce the arguments I made previously, in favor of replacing rules with standards and replacing logic with practical reason. (See e.g., pages 49-59.) Indeed, my previous arguments are so similar to these supposedly feminine traits that some readers might wonder if I’ve been feminized. Carol Gilligan expresses the masculine/feminine stereotypes in terms of “rights” versus “care.” {406} For instance, she examines the difference, in childhood games, between boys’ insistence on rules (reflecting their appreciation for the organization that rules can bring) and girls’ concern about feelings (from their dislike of the blame that rules tend to produce). The distinction between masculine and feminine traits thus suggests that we could create a feminist jurisprudence that is not limited to classical “women’s issues” (e.g., rape, pornography) but, rather, that applies a feminine perspective to the legal system as a whole. {407} Or maybe not. I don’t see that the increasing involvement of women in law over the years should make that kind of difference. I think the men who have controlled the legal system have shown plenty of flexibility and kindness down through the centuries. For every judge or leading legal philosopher advocating the “masculine” views, there’s been one favoring the “feminine” views. I mean, men in drag aren’t women, but they can give you a pretty 181

good idea of what women are. So no, thank you, I have not been feminized. I just happen to be on the cutting edge. In other words, either there is not a genuinely feminine perspective on law, or else it’s just a coincidence that I have described it in terms that conform pretty closely to my own preferred views. Thus, for example, I don’t believe that men who have been more influenced by their mothers’ ways of viewing things than by their fathers’ views would tend to apply any of their mothers’ perspectives to the problems they solve in their own lives. {408} If men can adopt a given viewpoint, it must not have a feminine origin. Feminists have suggested some lines along which a feminine jurisprudence might develop, including these: • Suggestion: Feminist jurisprudence should borrow features from James Madison’s views of what America should be. Reply: Most of Madison’s views appear in the Constitution, and some of the remainder would actually oppose a feminine care-oriented perspective. Suggestion: Tort law now compares the actions of the person who made a mistake with the actions that a “reasonable person” would have taken. In a feminist jurisprudence, the imaginary reasonable person could be replaced with an imaginary “caring neighbor.” {409} Reply: I have three problems here: (1) A “caring neighbor” standard would require people to show more care for others than they actually feel. Although I am a behaviorist and a pragmatist, I wish to assume, here, that the goal is to make people feel more like helping other people, not to make them act more helpfully. You can’t make people feel things they don’t feel, not even by changing their circumstances so that it becomes more normal and accepted to feel concern for others who need help. I know this because of my nonexistent training in psychology. Since this approach could not produce improved feelings in people, it would be a failure. (2) I assume that the purpose of this “caring neighbor” standard would be, not to extend the circle of people who might be expected to help prevent injuries (e.g., requiring bystanders to help, if possible, when they saw someone 182

drowning), but rather to impose additional liability on the people who fall within the existing circle. That is, I am more concerned with finding the right people to blame than with saving someone’s life. (3) I assume that the people within the existing circle would now carry an unreasonable load of responsibility. That is, we would say that we wanted them to be liable only if they were inconsiderate, but we would act as though they were liable even if they did behave considerately and somebody got hurt anyway. We would do this because we would screw up the math that we use to calculate a person’s liability for an accident. {410-412} • Suggestion: Robin West says that some women like the feeling of being connected with others physically – with their babies, through pregnancy and breast-feeding, and with men, through sex – while other women really would prefer a little more space and wish the men would go fiddle with their dipsticks. (This has nothing to do with jurisprudence, but it sounded intriguing, so I thought I’d spend two or three pages on it.) More to the point, she also says that the feminist perspective encourages judges to change their way of looking at people. Judges, she says, should see the people who appear in their courtrooms as human beings, and should empathize with their problems. Reply: There are a number of reasons why I don’t want to let my feelings get involved with my work: (1) If we don’t process cases quickly, the courts become more expensive. America can’t afford judges who slow down and try to understand people’s feelings. As I say, I think men have created a caring legal system, and I see no special way in which a feminine jurisprudence could change it. (2) If you structure your courts so that you’re mostly dealing with strangers, you find the feelings just aren’t there. You can care about only so many strangers, and after that you burn out. I know, because I’ve tried. (3) If a given area of law allows the judge to take account of the situations people are in, and if the judge does let himself have some feelings about those situations, then the judge is acting within the law, which seems much less predictable than our present method of deciding whatever we want based on our personal feelings about a case. (4) You really don’t want to encourage judges to let their feelings show. There are some pretty mean and nasty judges out there. 183

Today’s clinical and bureaucratic courtroom environment encourages the good side of the judge’s personality to come out, and discourages judges from being irritable or mean. (5) Emotions encourage bias. I can suppress my feelings and treat an American and a foreigner equally in my court; but if I let myself feel what these people are feeling, I will automatically tend to favor the American. {413} Or, to use another example, I will have feelings for the poor tenant who is being evicted, but not for the many tenants who are not present in my courtroom but who will be damaged if I favor this tenant based on my feelings. I have to look at it this way because I have taken over so much of the legislature’s job; I can no longer let myself focus on the specific case. In short, you can’t rely on your feelings. I don’t like using rules if I can get away with using standards; but if I’m arguing with a woman, I’m going to insist that judges have to make rules and stick with them. Hence, if there’s a difference between typical male and typical female reactions, the male reaction is better, and that’s why I think a feminine jurisprudence couldn’t add much to what we know already. {414} The Communitarian Perspective Some philosophers oppose the philosophy that seems central to America today: individualistic capitalism under a government that’s not supposed to place many limits on people. These philosophers prefer the idea of encouraging people to think of themselves as part of a larger group, and not merely as selfish lone wolves looking out only for Number One (or, at best, for no one beyond their own families). {415} What larger group do these philosophers have in mind? As a federal judge, it seems to me that “the group” must mean the federal government – not the state or local government, condominium association, subdivision, block association, workplace, church, civic organization, commune, etc. To me, the only way of making sense of these philosophers’ ideas is to assume that they expect each of us to put the needs of the federal government first.

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Now, that would seem pretty easy if we have already adopted the “night watchman state,” as I suggest. (See page 387.) That kind of limited government won’t be asking for much. But what if we do it the other way around? Suppose we begin with the group – i.e., the federal government – in its present state, and then try to decide how to allocate its resources. The thing is, we can’t do it this way. Our system is set up on an individualistic basis. We make our money first; we keep a certain minimal amount (below the lowest tax bracket) in order to meet the most basic needs; and only then do we begin to support the government. If we were going to think of the group first, we might just put all our money into the kitty – indeed, we might not even make any money, but might immediately start working for the group, as volunteers for a not-for-profit organization; and assume that the people responsible for distributing the food would be coming around to tell us when dinner will be ready. That assumption would not be utterly alien to us; we find it natural at certain social events, and it may be how our ancestors survived. Actually, if we were all putting the needs of America first, it’s not clear that we’d even bother keeping a federal government. If everyone was kicking in for the good of the group, a lot of government functions might be replaced by the ordinary interaction of people who are trying to help each other out. But let’s assume the government would continue, and that it would face the question of how to allocate all this money that people were dropping into the pot. Which problems would command our attention? The purpose of the government would be to solve problems facing the entire nation. Some of us might think the main problems are external (such as a foreign threat against which we must have military strength) and some might think our main problems are internal (such as an un-American level of inequality in the amounts of shelter, education, and medical care available to hardworking citizens). In present terms, this would be a disagreement between conservatives and liberals, between defense spending and welfare spending. If we were really operating as a group, we might all be reasonably well informed and concerned about the realities of these problems. We might not know all the details, but we might know – and be interested in knowing – 185

enough to gauge the intensity of the various problems facing us. We would probably tend not to be less informed than we are at present; we might be less likely to have the kind of disagreement that comes from sheer ignorance. Also, if we saw ourselves primarily as group members and only secondarily as individuals, we might view our natural state as one of unity rather than fragmentation, and might limit ourselves to disagreeing only when we considered it really important to do so. But I don’t see it that way. To me, we’d all become sharply divided between the two opposite poles just mentioned: we would demand either defense spending or welfare. I say we would also become harsher in our communications with one another. In other words, if we stopped worrying just about ourselves and started thinking about the whole country, we would not be able to have a meaningful dialogue about how best to allocate the federal budget. It would be civil war. Therefore, we can prevent chaos only if we mostly ignore the needs of the country and remain preoccupied with those personal needs that today’s extreme individualism can meet. (Did I mention that I tend to prefer the status quo?) From what we remember of childhood, and from what we’ve heard about the past or have seen in rural places or other countries, we know that grouporiented attitudes and goals are possible; but it seems that such perspectives cannot exist under our present individualistic regime. “Groupism” would be a new standard that would take some work before we could accept it. I say the only way we could accept it would be to wait until each person, thinking as a self-centered individual, decided to surrender his personal autonomy to the Group. I realize this is not what it took for us to get a Constitution and our laws, including those that limit individualism. If we don’t do it that way, then we’ll have to adopt Groupism by letting some people decide what’s best for others. I am firmly opposed to this. I think people should make their own decisions. The only exceptions are when I’m talking about how a judge who cannot communicate his views persuasively will just rely on the cops to make people do what he says, or when I’m saying that I can’t be expected to enforce a rule that the legislature tells me to enforce, or when I’m complaining that it would ruin America if I took all our slogans about democracy seriously. (See e.g., pages 51, 142 & 296.) 186

(Actually, I’m just writing this crazy shit to see if any of my friends read my books. If nobody calls me to account on this, I’ll know.) To explain why one person may sometimes know better than another what’s good for them, I could cite my own experience as a parent, or I could guess that sometimes friends look out for one another and try to keep each other from doing really stupid things. But instead, I think I’ll intellectualize the issue by citing my good buddy Cass Sunstein, who talks about “cognitive dissonance,” which is where you alter the facts to fit your beliefs, and then make choices based on your mistaken view of the facts. {416} I admit that there are times when two heads are better than one, especially if neither of them is yours. But I question this “mistaken view of the facts” stuff: I say it’s not necessarily better to drop a long-held belief just because it’s been disproved once or twice. It’s really a hell of a note for me to claim that the best thing is always to let people make their own decisions. Aren’t I the guy who’s saying that capitalism is best, with its insistence on getting rid of employees who don’t make the right decisions or see things the right way for the company? Aren’t I the one who spends all day sitting in judgment on the cockamamie things people say and do? Is there a single part of me that suggests I really believe in utterly free, individual decisionmaking? Basically, I approach the whole subject by assuming that members of a Group-oriented society would still be thinking in individualistic terms, as though they had the option – and the desire – to stand apart from the Group and decide for themselves whether to accept or reject each of its decisions, rather than committing themselves to it, supporting it, and believing in it. I make these assumptions because this is what “group” means to an individualist. It’s sort of like trying to explain brotherhood to an only child: they may not really understand it until they’ve had some experiences that carry them beyond what they think they know about people and the world. People have tried group-oriented approaches before, and they’ve worked in small-scale experiments for short periods of time, so there’s no point trying them again. I don’t think Americans could make them work. Also, this is not something we should experiment with in a scientific spirit. I’m a pragmatist, 187

which means I don’t limit myself to what happened in the past, but instead try to look, in non-linear fashion, at what could happen in the future. (See pages 270 & 386.) Around the world and down through history, many different kinds of societies have kept on trying to make communitarian approaches succeed. I don’t know what flaw in human nature makes that concept so appealing to people everywhere. Fortunately, we’ve been able to suppress it here by getting together under a common Constitution that allows the common government to unite us in enforced individualism. As in the “caring neighbor” situation (pages 408-9), an orientation toward the group means that you have to think about someone other than just yourself. Nowadays, we don’t put that extra duty on people. The communitarian idea would really get in the way of my individualism. They may think that common human decency says there are times when you have to pay some attention to the needs of others, but I say that’s super-morality. It’s like the Nazis! Übermensch! {417} Seriously, I was raised to understand that you just watch out for yourself and your family, or at most your friends. I wasn’t in the Army, I never worked as a fireman, I didn’t grow up on a farm. I never had any prolonged exposure to situations where everyone just pitched in and did their best to help get the job done. So I can’t really imagine what it might be like to be consistently helpful or generous to people you don’t even know. I mean, what am I – Mother Teresa? To me, you just need to be able to sit down at the end of the day and calculate how your day’s work paid off for you personally. I felt very differently when it came to raising my sons, but that’s not because my family was the one place where I refused to adopt this bullshit about self-interest being the hallmark of humanity. No, family is just a remarkable exception, where I am at my most selfish (i.e., am concerned about passing on my genes) and yet somehow that selfishness converts itself into the greatest unselfishness, where I would give my life for those kids. See, the problem with helping the group is that when everyone is most trusting and giving, then it becomes almost irresistible for one member of the group to take advantage of the others. In my mind, what counts is not a morality’s successes, but its failures. If you can’t get everyone to observe your communal supermorality voluntarily all of the time, then it’s no good. 188

By that standard, my own morality is a failure too. Since no moral code will pass this 100% test, they’re all failures. So when you call a morality a failure, it’s like saying “a wet rainstorm.” Failure ceases to be a meaningful criticism of moral codes. I admit it’s possible that more and more people will behave better and better under a communitarian arrangement. Indeed, this is what makes it inevitable that someone will eventually take advantage of the others. For some reason, though, I’m not nearly as pleased by the thought that most people will behave better and better, as I am worried about the prospect that one person will break the rules. Maybe I’m just terrified of being the sucker who gets taken advantage of by the shrewd rulebreaker. If that happened, it would prove that someone found a way to be smarter than me, and I won’t allow that to happen. My cleverness is my pride and joy. Clearly, the group would have to find an effective way to deal with the rulebreaker. Everyone would behave better and better until we reached a point where someone couldn’t resist the temptation to take advantage of the others. So let’s say we put that person in jail, and the rest of us continue becoming more honest and trusting, until we reach another person’s temptation threshold, where he too finds it impossible to resist taking advantage of us. Bam! That person winds up in jail as well. Most of us keep getting better in our behavior toward one another, and the moral stragglers keep getting tempted and arrested. Eventually, we’ll have a spectrum of people, ranging from the worst ones (who were tempted immediately, have been given a second chance, cheated again, etc.) to the best (who never cheated on their friends). Maybe our punishments will range from imprisonment through probation to a clean record. In short, it might be much like things are at present, except that the standard of ordinary life could be much more civil. This is why it wouldn’t work: it might persuade our most intelligent, productive people to move to another country because they couldn’t stand such a decent life. We might even be conquered by societies that had to offer financial incentives to get their kids to join their armies because they believed self-interest was everything and they no longer had much of a sense that they were fighting to defend their fellow citizens.

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The message of the real communitarians, however, is that we’re all part of the community, so there wouldn’t be any arrests – or something like that. They don’t make very clear what they’re really trying to do. And I’m certainly not inclined to help them figure it out. I guess being helpful is not my thing. I take my individualism seriously, and I just don’t see the benefit of acting like a part of something larger. {418} A lot of what’s wrong with these communitarian views is that they’re based on hope for the best in people rather than acceptance of the worst. Again, drawing on my experience as a parent, I have learned that, when people err, you get the best results by being accusatory and suspicious, and by punishing them harshly for their mistakes. You sure don’t want to concentrate on praising and encouraging them when they do something right – which is what we might do if we thought of ourselves as members of a group of people who look out for each other. We know how people behave in America because we’ve studied them carefully. Sure enough, Americans have behaved badly when we’ve told them they’re expected to be selfish individualists. So I think we have to stick with our present arrangement. I just don’t see a good reason for taking a risk and trying to find a way to build something positive into the system. The final problem with communitarians is that they assume that the law can improve people’s attitudes. As a behaviorist, I don’t care what attitudes people have. Attitudes, to me, are not behavior. Maybe that’s because I’m not particularly sensitive to that sort of thing, so that their attitudes don’t affect me (or most judges) too much. (See page 192.) This is how I think everyone is, or at least should be. As long as you don’t break the law, I don’t care if you’re a total jerk. You’ve got a right to be that way, and in my opinion that right doesn’t do any harm to the rest of us. Or maybe it does, but I don’t see how law can do anything about it. The law wouldn’t influence people’s behavior even if the law did require them to behave in a caring way. That’s why I’ve been arguing that we shouldn’t change the law to encourage people to be considerate: I know for a fact that it wouldn’t change anything, and therefore it makes me nervous to think that it might change something. {419422}

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Finally, communitarians find encouragement in the history of the women’s rights movement. They say that Western civilization kept women subordinate for thousands of years, and then suddenly attitudes changed in the 20th century. Communitarians say that maybe other longstanding attitudes, like individualism, can one day come to seem wrong or outmoded too. I have several responses: • Communitarianism is not a new idea – as I say, people have tried and failed at it for centuries. Thus, it is different from women’s rights, which is not a new idea either. I can prove that women’s rights is an ancient idea, not because I know that Plato advocated it in 400 B.C., but because I’ve found an obscure book that a woman wrote on that subject in 1792. I would rather not cite Plato because he favored both women’s rights and a kind of communitarianism. I insist that the roots of organized legal thinking should be found in Aristotle, who came after Plato. (See pages 313-15.) All that’s new about women’s rights is that people finally accepted it in the 20th century. The only new thing about communitarianism in the 21st century would be if people finally accepted it. So the examples are similar in that regard. People accepted women’s rights partly for medical reasons. Now that pediatric care was improving, women did not need numerous kids in order to insure that a few would survive to adulthood. Also, they had better birth control. So women could have just a few kids and then do something else with the rest of their lives. It was also easier to do the housework because they had devices to help them; for example, they could use a washing machine rather than doing their laundry by hand. This gave them more free time even when they were taking care of the kids. So whereas it was difficult to think that a woman was the equal of a man when he would come in from the fields and see that she was working her ass off, now we were in the age of “I Love Lucy,” when it was much easier to perceive the woman as an equal. If you believe that, then you may also believe, as I do, that people accepted women’s rights partly for economic reasons. Here’s how it 191

happened. The economy used to include mostly man-type jobs like construction and pouring iron, because the men who defined and measured the “economy” were thinking especially in war-related terms (e.g., how many ships do we build a year, and how much coal do we produce). They knew little about, and were not inclined to count, the contributions to lifestyle made by ladies’ sewing bees, social aid societies, and other services, formerly rendered by women, that have mostly disappeared because we assigned no value to them. So – and here we get to the meat of my theory – as the economy “developed,” the historically unique contributions of women (or at least the ones that men had never thought of making and didn’t know how to make) became more highly valued. Again, economic advancement made it easier to see why women should have the same rights as men. • A related economic factor is that women eventually caught on and realized that they had not been doing “real” work, and that they’d have to go into the factories, management, and other traditionally male kinds of jobs because that seemed to be the only kind of work that really counted under the objective logic of capitalism. Fortunately, the workforce promptly welcomed these women with flexible schedules and other features to suit their needs. Again, the point is that economic changes led automatically to a recognition of women’s rights, such as the right to receive equal pay for equal work. Men tended to oppose women’s rights, believing that this was to their advantage. Similarly, the rich and powerful have tended to oppose group-oriented proposals because they’re worried about losing their lifestyles, their power, and their ability to flatter themselves as being superior creatures rather than being mere members of a group. I make a living far above the American average, I am powerful, I like to think of myself as a superior intellect, and I prefer the status quo. Therefore I have given the idea of communitarianism a carefully balanced consideration – devoting five and a half pages to this admittedly “influential” viewpoint here, comparable to the 39 pages I devoted to my admittedly weak economic theories in Chapter Twelve – before rejecting it. I prefer to think that I have the future on my side, 192

however, so I don’t think I’m the type of man who would have opposed women’s rights. (See page 413.) If capitalism encouraged people to replace sociable interaction with harsh individualism, communitarianism will have to do the exact opposite. Unfortunately, communitarianism cannot succeed unless it overcomes the attitudes that people like me erect against it. The situation facing a grouporiented vision of society is sort of like having a random assortment of kids on a softball team, where there are a couple of stars and a couple of kids who are lousy softball players, and we tell them they all have to look out for each other and be a real team – but then we allow individualism to stick its hand in and offer the stars a chance to leave this team and go to one that’s more likely to win, and we allow one of the unskilled players to decide that he’s actually a star, and thus he sues the team for failing to make him the captain. Communitarianism may never be able to overcome those kinds of temptations in a rigidly individualist mentality like the one that I rigorously enforce through our legal system. {423}

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PART FIVE LAW: WINGING IT

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Chapter Fourteen Back to the Future
Partly because of the [political] methods of selecting judges, partly because of the narrowness (even today) of legal training and experience, and partly because of the kind of person that is drawn to law, few judges possess the intellectual capacity, the vision, the courage, and the practical experience to be innovators of social policy. – Richard A. Posner, Problems of Jurisprudence, page 445

Lawyers and judges don’t like my claim that they just muddle through, basing their most important and difficult decisions on their personal views. I’ve said that you can solve legal questions by practical reasoning. You may not solve them well, but at least you’ll solve them. People in law want to think they’re doing something more real or scientific than this, however, so they keep searching for other explanations of how law works. {424} One view – “neotraditionalism” – says that we can indeed solve all legal questions by relying on the old, familiar legal sources of guidance – cases, statutes, etc. This cuts two ways. On one hand, it says that law involves more than merely the judge’s personal views. On the other hand, it says that law need not grow out of a solid philosophical or scientific foundation. To understand neotraditionalism, let’s go back a century, to Chris Langdell at Harvard. If you don’t count Ed Coke and Bill Blackstone (see pages 11-12), you could say that Langdell introduced the idea that law could stand on its 195

own. That was the original “traditionalism,” and it became the orthodox view. Holmes replied that traditionalism was wrong. He said you need science, history, philosophy, and other disciplines to understand this specialized field called “law,” and that those other disciplines might even be able to replace law altogether. (See pages 15-16.) In Holmes’ day, however, the scientists, historians, and philosophers hadn’t yet begun studying law intensely, so his challenge didn’t make a major dent. Traditionalism continued to be the ordinary way of teaching and thinking about law, especially at Harvard. {425} Law school remained a matter of starting with a good general college background and then learning how to work with the materials in your law books. {426} If anything, in the 30 years after Holmes, from roughly 1930 to 1960, it became even easier to think of law as a self-contained operation, for several reasons: • Lawyers were revamping many aspects of law to make law and procedure more modern, effective, and popular; and they were achieving most of this renovation just by relying on their own sense of how things ought to work. {427} The sciences still didn’t have much insight into law. There weren’t many deep political disagreements among Americans, so people tended to treat law as a technical field for legal experts rather than a political field in which outsiders should have a say. {428}

• •

It all started to change about the time when I was graduating from law school, around 1960. And by now, even the legal mainstream has become extremely divided on political issues. “Political” issues have become more relevant to “law” for several reasons: (1) Under Chief Justice Earl Warren, the Supreme Court in the 1960s brought a lot of new issues into the courtroom (e.g., sex, prisons, and various aspects of our political system). {429} (2) The Supreme Court increasingly rejected the principles of standard legal reasoning that had ruled at Harvard and elsewhere during the previous decades – but I still think I got a great education at Harvard during the years just before this. (See pages 3 & 98-100.) (3) The Supremes thus inspired lower courts to expand people’s 196

rights in many areas of law. (4) Other branches of government have grown and have gotten involved in more controversial issues, creating whole new areas of highly political litigation. The standard methods of legal reasoning began to raise questions because scientists and other nonlegal thinkers had finally become able to address legal questions in useful and interesting ways. At the same time, lawyers have lost some of their own confidence in their ability to sort things out by themselves, because some of their earlier achievements no longer seem so impressive. For instance, no-fault divorce has hurt many of the people it was supposed to help; bankruptcy gets abused; courts are blundering around in personal issues of sex and religion; and so forth. {430} Not surprisingly, we’ve seen a tremendous increase in litigation, as people fight over things that never would have gone to court before. To fix this, I think we should charge higher court fees, to discourage people from bringing their disputes to court. (See page 200.) This would enable us to maintain law as it has always been, a place off-limits to most people. But instead, we’ve added more courts, personnel, and bureaucracy, in an attempt to deliver what the legal system always promised it could deliver. (See page 8.) Now they’re even experimenting with “alternative dispute resolution,” a hokey thing that tries to resolve people’s legal problems without forcing them to endure years of litigation or spend thousands of dollars on legal fees. As a scientific person, I frown on experimentation in law. What’s really going on, in this litigation explosion, is that law has reached a place where it just has to look beyond the traditional legal materials. The law books don’t tell a judge how to deal with an unbelievable backlog of cases. {431} It’s hard to feel like you know what you’re doing when you proclaim that law is the way to solve disputes, and people take you seriously, and then you see that there’s no way you can hire enough judges and clerks and build enough courthouses to solve all the disputes that your legal doctrines have created. Yet in spite of everything, I still believe in people as selfish individualists who should assert a flood of personal rights that nobody can afford to litigate properly.

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As far as traditionalism is concerned, there was bound to be a change, sooner or later. Traditionalism didn’t give a hoot about whether legal reform was really working; the main thing was to make improvements that seemed like they should work. {432} The relation between law and politics was remarkably stable throughout the Great Depression, World War II, and the McCarthy era – which may convey some sense of just how far law can be removed from the real world. This stability gave traditionalists an opportunity to refine their techniques. By the time they were done, the most creative legal minds were bored stiff with the idea of improving law from within law. Thus, the best legal thinkers began looking beyond traditional legal analysis in the 1960s, using other disciplines’ methods to answer legal questions. I, for instance, looked into economics. Interdisciplinary law-related research has intensified since then. But even if it hadn’t, the tremendous achievements of science, compared to the mess in law, would have prompted many people to doubt whether law deserved our respect. {433} That kind of questioning becomes especially compelling when you stop using the 17th-century approach – analyzing a judge’s traditional reasoning by using your own traditional reasoning – and instead use science, philosophy, or some other discipline to highlight the absurdities in many judicial decisions. Finally, as a person who was teaching law to rebellious students in the late 1960s, I can testify that times had changed. My tradition-oriented classmates in the late 1950s would never have accused their professors of playing favorites, but now my students didn’t trust me as far as they could throw me. (Never did understand that. Me, play favorites?) I had looked forward to an opportunity to harass students by using the Socratic method, just as it had been used on me, but they weren’t having any of that either. Fortunately, that rebellious generation graduated, and things slowly returned to normal in the law. I still think the Socratic approach is best, and I’m glad most law schools still use it. (See pages 98-100.) Law students have become much more competitive since those early years in my career. These more career-minded law students don’t really need the third year of law school, so I agree with those who say that third year is mostly a waste of time. Also, traditional legal education is less useful in general 198

because so much of law now is statutory, and there’s such a big difference between learning to work with legal cases (which is mostly what law school is about) and working with statutes (which doesn’t call for standard legal reasoning). (See chapters 9 & 10.) OK. That’s the story on traditionalism. Now we come to neotraditionalism. Plainly, traditional legal analysis has run out of gas. (See page 156.) {434} But does this mean you should use some nonlegal method of understanding law? Neotraditionalists say no. They admit that no area of knowledge, including law, can stand alone, so they are not regular traditionalists; but they still say that there exists something, called law, that is its own separate discipline – indeed, that there must be something called law, because in their view the hybrid fields (e.g., “law and economics” or “law and sociology”) cannot do things that you can do with purely legal reasoning. When I hear this, I hear a nostalgia for the days when law could pretend to live in a “good old American values” world of its own, away from today’s complex, scientific, political, highly intellectual, and constantly changing problems and solutions. This is the philosophy of lawyers who want to keep their legal monopoly. In more detail, neotraditionalism says that law is unique for the following reasons: {435-437} • Law is nonconvertible. It may seem old-fashioned, they say, but it plods along, cleaning up after the messes that policymakers create, and it poses problems that only someone trained and experienced in it can handle well. {438} Reply: But there are many gaps in it, and every time a lawyer or judge reaches one of those gaps, he must reach outside of law for solutions from other disciplines. If you can prove that criminals are handled more cost-effectively when you use tools of psychology rather than merely old-fashioned legal guesswork, you should use tools of psychology. And if the first stab of psychology doesn’t work, the psychological researchers will go back to the lab and try to cook up a better approach, and one day they’ll find it. That’s how science works. {439} If you’re a lawyer who dislikes psychology, you may find that your best tools for arguing against it are philosophical – so you’ve traded the Devil for the deep blue sea, using one nonlegal discipline to beat back another. Or else, if you let 199

psychology into the criminal law arena, you may soon find psychologists fiddling around with your way of handling family law problems too. {440} Similar things happen when you use other nonlegal fields, like economics. These various fields may not now be able to eliminate the guesswork of traditional legal reasoning in all instances, but they’re working on it. {441} • Law is a happy medium. Law does not subscribe to extremes – to either the right-wing conversion of law into economics (see chapter 12) or to the left-wing “critical legal studies” dismissal of law as being simply whatever the judge wants to do. Reply: I admit, both the “law and economics” and the critical legal studies movements try to take the hot air out of law’s claims about itself. (See pages 153-57.) But critical legal studies has been far too negative about the possibility of converting law into something workable. They just want to trash it all as sheer politics. Maybe it is, but there remains the question of how best to study it. The law and economics movement is more constructive; it lets me play with economics, and it has made some inroads. {442} Law is a method of prudent, traditional practical reasoning. Law is not a science. It requires judgment, humility, and an ability to weigh lots of different things. {443} It prefers Aristotelian piece-by-piece reasoning (and therefore likes the scattered thoughts found in previous cases) rather than broad Platonic speculation (and therefore tends to dislike the large, ill-fitting systems that statutes sometimes create). The emphasis, in the word “judgment,” is on caution and restraint, as in the judgment that you make before taking a step; it is an attitude rather than merely an intellectual ability. Reply: I agree that this is a good attitude with which to decide cases, but it doesn’t carry as far as the neotraditionalists want it to. {444} Within our legal tradition, in some ways, Blackstone is like Aristotle and Bentham is like Plato. (See pages 12-16.) While there are good things in both views, I do prefer the status quo, so I too am suspicious of the big-picture style of Plato and Bentham. Yet you can’t just go around saying, “Be careful.” At some point, as I explained when describing the officer who can’t make out the battlefield commands coming over his radio, you have 200

to do something, even if you have no idea what you’re doing. Too much caution and you’ll start to sound like Edmund Burke, who was so conservative he’d find an excuse for any traditional way of doing things, no matter how evil it might be. {445} Sure, it might be safer in some ways to tell today’s judges to stick to the straight and narrow path, because judges can indeed be dangerous: they’re politically rather than intellectually selected for their jobs and, even if they were law school stars (which many weren’t), are still probably not trained to use science or any other source outside their precious little perspective of the law. But if judges don’t bring extralegal influences into the law, who will? We’ve sealed up the entrances so that law belongs exclusively to lawyers; thus, instead of admitting reformative influences from outside, our legal system is determined to rot in its own decrepitude until society becomes thoroughly sick of it. {446} Practical reason requires you to be open to a variety of tools to solve legal problems. (See page 73.) Neotraditionalists, however, want to restrict legal reasoning so that it does nothing but draw analogies from prior cases. Unfortunately, analogy by itself just poses a lot of different ways of viewing problems. You have to make some political choices to decide which analogy is best. (See e.g., page 95.) {447} Indeed, reliance on analogy doesn’t even get the neotraditionalists to the first formalist/traditionalist goal, which is to have a set of rules. {448} Neotraditionalists have suggested a mix of ideal qualities to help the judge do his job properly, but this implies that you have a homogeneous pool of judges, which is bad if you want diverse opinions, using the test of time, to sort out the bad legal ideas from the good ones. (See pages 114-15.) {449} There’s also no evidence that these ideal qualities are unique to law or that they do produce superior law, and this leaves us with the question of how to recognize the ideal judge if you do happen to meet one. Messiahs, judges – a lot of us have this problem. I know the neo-traditionalist point is that all this should encourage judges to be cautious, but you could get just the opposite message: if law is unique and there are ideal judges, then won’t the person who thinks he is an ideal judge, dealing with a problem he thinks is strictly a legal problem, feel that he is the Chosen One who should go ahead and make sweeping decisions to solve it, without consulting science or any other nonlegal source of 201

information? All this hangs heavily on practical reasoning which, as I said before, can “prove” that someone is a witch, can incorporate almost anything you want it to incorporate, and therefore should not be treated as a solid source of legal insight. (See pages 72-78, 121 & 255.) {450} • Law occurs within an interpretive community. OK, the neotraditionalists admit, judges do impose their own views on the Constitution and statutes – but they do so among lawyers and traditions, and this limits the kinds of interpretations they can reasonably reach. Reply: You still don’t have any guidance on which interpretation is better. There remains a spectrum of disagreement on what the damn document actually means. {451} As I pointed out on page 50, nowadays we consider legal rules so flexible that I think it might even be possible for, say, a black judge to show a clear bias in favor of a black litigant without someone like me thinking that that judge was biased. I know that people want law to yield just one clear outcome, but often it can’t. {452} Tradition is not the obvious answer to all our legal woes. Some of our most important lawyers and judges were nontraditional. For example, Supreme Court Justice Robert Jackson, who judged the Nazis at Nuremberg, never went to law school. Ben Cardozo left law school before graduating. Learned Hand failed as a practicing attorney, and Ollie Holmes wasn’t a great success at it. You must go above the narrowness of tradition if you want to be great in law. So, as explained on pages 98-100, we really must restrict the practice of law to those who go through just the one type of legal education now available. {453} Neotraditionalism requires the judge to recognize his limits. In the end, it is largely a sham in which you act like you’re doing traditional law but your stronger guide is practical reason. Neotraditionalists can’t go as far away from tradition as pragmatists like me, because we’re not backward-looking like Blackstone (see page 444), which is what tradition requires (see page 114). But pragmatists (like me) and neotraditionalists are all skeptics about being able to find objective answers to tough legal questions. {454}

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Chapter Fifteen A Toast to Naked Judges
[T]here is a tendency in law to look backward rather than forward – to search for essences rather than to embrace the experiential flux. The consequences of law are what are least well known about law. The profession’s indifference to studies that cast doubt on the lawyer’s faith in the expressive, symbolic, and norm-reinforcing consequences of law is appalling. The situation is unlikely to be changed ... by preaching. It is deeply rooted in the nature of legal education, which in turn reflects the age-old practices and traditions of the legal profession. – Richard A. Posner, Problems of Jurisprudence, pp. 467-68

This book has addressed two questions of jurisprudence: (1) Can judges rely on legal reasoning, by itself, to answer legal questions? and (2) Can you prove, to the satisfaction of every sane judge, that a tough legal question – every tough legal question – has just one right answer? I hope so, because judges aren’t elected, and therefore we have to prove our worth by displaying just as much competence as other unelected federal actors must display in order to justify the power they’ve been given. {455} To answer these questions, I started by spending endless pages on epistemology (see page 67) and ontology (see page 174), and then concluded that these areas of philosophy didn’t answer my two questions. Through that analysis, I was able to discover what ordinary people learn every day, in courtrooms across the country: that legal rules are vague, debatable, and constantly changing. Science, too, didn’t give me what I was looking for, because it doesn’t provide the sense of stability and certainty that people want from law.

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Since I have assumed that we must have the kind of law that judges provide, my question is how to justify it when it fails to make sense in terms of either logic or science. For this, I like the concept of “practical reason,” which essentially means anything I want it to mean. Yet even this doesn’t justify all of the screwy things I do in my courtroom. Often, my personal best guess might depend on a hunch that I can’t explain; it might contradict very solid legal reasoning. (See page 124.) In the end, much of it comes down to my own personal politics, my willingness to take one previous case rather than another and say, That, by God, is the law, and the police will be enforcing it. {456} This is often a matter of making my best guess in a situation where I really do not know what I’m doing, but do not feel that I can take the time to do it right or hand it off to other people who might be better at it. {457} In short, you can’t define law as a coherent body of thought, so I prefer to define law in terms of the actions that people are going through. That is, I am a behaviorist; I define law as simply “the thing that judges and lawyers do,” regardless of whether the things they do make sense. What judges do is make law, and they make it from whatever resources they have. Law would still be law even if judges began to derive their primary guidance from LSD – and I do not intend to imply that this is not already happening in some courts, or that you could tell the difference if it were. I say that because the rigorous study of interpretation has failed to provide any clear, consistent way of sorting out the sometimes incoherent utterances that judges call “law.” Yet I do believe in requiring people to attend law school to learn this crap. (See page 3.) In other words, not only is there no genuine reasoning method (such as math or science) that consistently supports the decisions judges reach; there may also be no way of interpreting their decisions so that everyone can agree on what they mean. Everyone, including the judges who write the words, has different personal biases and politics, so in many cases – and especially in the most important ones, that lay the groundwork for all the others – you can understand the words to mean a variety of different things. The main exception (which I won’t mention here) is something like tax law, where they have endless regulations to make things as precise as possible. (See pages 5759.) I suppose we could have explored that approach further, but I don’t like

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it. I don’t appreciate being bound by so many fricking rules. It makes me into a mindless functionary instead of a brilliant intellectual. We tried backing off a step and finding philosophical principles that would explain law on a more general level. We do find that people are full of “natural law” principles that guide their thoughts about right and wrong. {458} But our society is too diverse to find consistent results even at this level. Indeed, that diversity has now reached into courtrooms, so that we have judges of far more varied religions, attitudes, races, training, etc. than we used to have. The good news about diversity is that two heads are better than one: when you get opinions on an issue from a variety of judges, you’ll probably have a better perspective on how society as a whole needs the question to be answered. The bad news about diversity is that it’s harder for judges ever to reach agreement on some things. But this is mostly irrelevant for those who aren’t sure we should have a judiciary at all or that it should function remotely like ours now does. {459} What I’ve concluded, in this book, is that there’s no such thing as legal reasoning. Judges, like many nonlawyers, simply rely on their own sense of what’s best. Their “practical reasoning” includes hunches, instincts, and prejudices that they cannot explain. It is frequently impossible for a judge to show that he has reached the right decision. A judge in a difficult case can hope, at most, just to reach a reasonable decision, and it becomes harder even to seem reasonable to fellow judges when they’re all so different from one another. Often, you get big changes in the law merely because many judges’ attitudes somehow change – or change back to what they were before – for reasons that no one seems able to explain. (See page 6.) In light of such experiences, I take my behaviorism further and say, not merely that law is best studied as if it were nothing but actions, but that it is nothing but actions: it is the actions that people can take that other people will describe as “law.” I’m not saying how many people (or which people) must agree that an action is part of law in order to have it count as law; I’m merely saying that anything could, in principle, be part of law. I focus especially upon those actions called “arguments,” but when speaking of arguments specifically, the same thing goes (that is, anything goes). There’s no telling which arguments – or, ultimately, which underlying morals – we 205

will find most reasonable and persuasive. {460} At various times, we may be most guided by the ideas of corrective justice (see pages 313-33), wealth maximization (see chapter 12), or prudence (see pages 442-49), and possibly (although hopefully not) by feminism or communitarianism (see chapter 13). As a behaviorist, I don’t think the law cares about people’s souls, minds, attitudes, or anything except what will motivate people to act in the presumably “right” way rather than the presumably “wrong” way. What I’m giving you is an unpretentious view of law. It’s not some lofty pursuit. But I don’t mind. I don’t see that it needs to be fixed. You might be able to restructure our legal system so that it would pay more attention to science, and that might make the system more honorable. I’m not sure society wants an honorable or scientific legal system, though. If Americans prefer witch doctors and voodoo, why not give them that? (See page 222.) {461} This may be the death of law as we know it, but it’s not necessarily a bad death. For example, contrary to popular opinion among judges, I think it may be best that different federal circuit courts of appeals are inconsistent with one another, because otherwise they might suppress new ideas prematurely. In law, unlike science, the idea that wins out and becomes the law of the land may be demonstrably nutty, so it might not be best to resolve disagreements among circuit courts too quickly. Perhaps the same would be true among courts at lower levels. (See page 80.) Maybe, by saying this, I am showing that I’m really not so concerned, after all, with making sure that law is consistent or stable – which leads to the thought that perhaps we could stand science’s fluctuations in lieu of the kind of system I’m peddling. Indeed, I can imagine many areas in which science should be injected into legal training and practice. {462} I may not think attitudes are important in the law itself, but I think they’re very important in this discussion of the law. We need to acquire pragmatic attitudes toward law. I admit, I haven’t done a very good job of defining what pragmatism is, except by excluding what it is not. {463} So let me try now, while I’ve still got a few pages left in me. First, you had your Enlightenment characters, like Isaac Newton, who invented whole new areas of science, and who believed they could carry right 206

on into the study of people, applying the same scientific methods to human behavior, morals, and law as they applied to physics. They thought, for example, that it was scientific to design government so that it would have checks and balances, or to study economics in terms of laws of supply and demand. I have spent this book demonstrating how this is mistaken: I reject the idea of a court system that doesn’t make sense and that exists only because some Enlightenment bozo thought it was scientific; I have no use for economics; and I certainly don’t believe in the study of human behavior. What rescued us from such idiocy was that people like Nietzsche came along and told us that the urge to control lay at the root of everything. They got this by borrowing from the Romanticists, who said that most of what seems certain and scientific is actually a dream even to people who aren’t judges. Science bored the Romanticists cruelly. They got away from that naïve Enlightenment scientific optimism. They opted, instead, for the belief that we could understand the world through a sort of “Age of Aquarius” mentality: that there were no limits on the human spirit and that we are one with nature. I might have been a little slow understanding this stuff back in the ‘60s, but now that I’ve read about it in Emerson, I think I get it. These Romanticists were like gods among men. {464} What they were saying was, if we’re one with nature, then we can’t stand apart from nature and study it as though we were independent observers. I mean, we can, and we do it all the time, and that’s how we figure out how to make plastic explosives and pantyhose. Indeed, pragmatists believe quite strongly in science, which explains how their views came from Romanticism. Getting back to the urge to control, the main point regarding pragmatists is this: they said we don’t just quietly study and come to understand laws of nature that are out there in the real world, waiting for us to discover them; instead, we develop theories about nature (including ourselves), and those theories help us control nature. If we have lots of theories about something, that may just show that we have an especially strong urge to control it, and not that we’ve made any genuine progress in actually understanding it. We can draw that distinction because we have an idea of what it would be like to actually understand something – that is, we can imagine what it would be like to know the truth about it. Pragmatists don’t believe we can know the actual truth about something. (See page 114.) So pragmatists don’t make that 207

comparison. They just say that truth is merely what we will wind up believing, and they leave open the possibility that it could also be the actual truth about the thing. This is a lot of philosophy. Not many philosophers have called themselves pragmatists. But if you want to expand the umbrella a bit, you could say that a pragmatist is a person who thinks that a theory is only important if it makes a difference in the world. This is like the logical positivism I described on page 68. You also see traces of pragmatism in other philosophers’ writings. So pragmatism is sort of like a virus that people can catch and spread around without even knowing they have it. There are neopragmatists, Romanticist pragmatists, plain vanilla pragmatists, and other flavors. {465} My kind of pragmatism is anti-theological. I don’t believe in having authorities who stand up front and deliver the revealed truth to ignorant lay people. For example, I really dislike the kind of pompous judge who uses words like “esemplastic” and “marmoreal” to make his writing seem extra important and intelligent. If traditionalists treat law as a religion or a transcendental philosophy, I treat it as a science, except that I’m more like Pontius Pilate when it comes to the question of what is truth. It’s not that I doubt that we ever know anything. For example, I’m pretty sure that I’m a federal judge. It’s just that I’m a forward-looking kind of guy and therefore I’m preoccupied with the stuff we haven’t yet figured out rather than the things we have a working handle on, so that’s why I keep harping on the idea that we don’t and can’t know truth. We do know things; they just aren’t true. What I’m really looking forward to is the day when my fellow judges will join me in a brotherhood that treats law as a means to accomplish what society wants, rather than as a system or end in itself. Science needs to play a central role in this. So I’m actively seeking the best possible way to accomplish society’s goals, even if that means eliminating the federal court system. That system is ripe for a change. In my view, the black robes and ceremonies, the big words and the hocus-pocus, have all been around too long. Come visit my courtroom at 219 South Dearborn Street in Chicago, and you’ll see how I have changed all this. {466}

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I was going to end the book there, but I just remembered that I wanted to talk about free speech. Plainly, if there’s no truth, then free speech doesn’t bring out truth. Then again, if you don’t have free speech, then you can’t point out how no one else has the truth either. So instead of muzzling our vocal idiots, we let them prattle on, and then we one-up them. Separating the issue of truth from the issue of free speech also frees us to allow artists to produce offensive things, because now no one will care if there’s no truth to their fictions. If we want to censor them, we have to think of new excuse. Or, to cite a very different example, we wouldn’t want to stop protecting freedom of speech in the area of science, because it might be fiction too and therefore would be just as deserving of free-speech protection as art is. Or it might be truth, and therefore there would be nothing wrong with allowing it the full protection of free speech, since there is no truth. {467} I personally think it’s OK to burn draft cards, because you could say that emotional actions are a form of speech that should be free, but then I’d have a problem where, if someone punched me in the nose, that wouldn’t be free speech even if it was an emotional action. Also, you might want to restrict free speech if it cost too much to hire police to protect demonstrators who wanted to march on behalf of some goofy cause. The best way to tell if some legal theory makes sense is to see whether it produces good results. That is also the test of good science. So the results are the thing; law just happens to be one way of attempting to get there. The problem with lawyers is that they do not embrace the experiential flux. {468469} I keep thinking, Come on, dudes, embrace that experiential flux! But it don’t happen. They all just sit there. This situation won’t change overnight. This is how it’s been for centuries. The place to start is not the highest courts in the land, as you might expect. No, it’s the law school, where they’re already doing a good job (see pages 98-100) but should now radically change their approach, so as to stop eliminating the nonlegal perspective and trying to make people think like lawyers. (See page 86.) If nothing else, maybe we could have a little more training for future law professors, so they would not be totally clueless about science. If we don’t do something along these lines, there’s not going to be much improvement in our legal system.

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Law as we know it is covered with nonsense. If we could clear away the crud, we’d discover its true nature somewhere underneath. Speaking of underneath, maybe that’s the key. This may seem a little bizarre, but I do like the image of judges walking naked down Wacker. It would be an artistic act, symbolic of them as little emperors, and would also bespeak the shedding of pretense, the commonality of mankind, and the discovery of one’s navel. A toast, then, in the spirit of buff brotherhood: Judges of the world, unite! You have nothing to lose but your robes!

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Appendix I Further Thoughts about People Like Posner
Let’s be clear: even a law factory like Harvard (capitalizing on its fame by producing more lawyers per year than any other U.S. law school) sometimes educates individuals who are not interested in serving a legal system that is helping to destroy America’s social fabric. Posner himself acknowledges his disagreements with certain Harvard professors – indeed, with whole lines of legal thinking that originated at places like Harvard, Yale, Columbia, and the other elite schools; he also mentions that changing tides in legal thinking have repeatedly caught such schools flatfooted. (See e.g., Posner’s pages 15 & 432.) The people you hear praising our legal system are, overwhelmingly, those who have accepted its sometimes absurd doctrines and identified themselves with its sometimes disgusting goals – that is, practicing lawyers and other legal “success” stories, like Posner. I can’t repeat the full text of Take the Bar and Beat Me here, but I do want to cast a bit of perspective on the legal profession and its definition of success, so I’ll cite a few relevant thoughts from that book. First, law school is not primarily a scholarly experience. It awards a “Juris Doctor” degree, but this is not a doctorate like a Ph.D., which typically requires the candidate to write a dissertation distilling five or six years’ worth of graduate study and significant originality. At best, law students write an article or two for a legal journal during their law school years. Thus, they do not generally become familiar with the leading experts in a specific area of 211

knowledge, work closely with graduate faculty members over an extended period of time, or obtain experience in teaching. You can sense the contrast between the cookie-cutter mentality of a law school (which may turn out hundreds of graduates each year) against a Ph.D. program (which, at many good schools, may award only one or two doctoral degrees annually). The latter are concerned with producing genuine experts. Nor do the graduates of elite law schools necessarily belong in jobs requiring genius. For example, Posner repeatedly emphasizes that judging tends to be very different from science. Consider this quote from Problems of Jurisprudence (page 192): The judge’s essential activity ... is the making of a large number of decisions in rapid succession, with little feedback concerning their soundness or consequences. People who are uncomfortable in such a role – and perhaps they are the most introspective, sensitive, and scrupulous people – do not become judges, do not stay judges, or are unhappy judges. A reader may be favorably inclined toward the elite schools because s/he appreciates intelligence and tends to believe that the admissions officers at the most competitive schools seek the most intelligent students. I sympathize: it’s refreshing and helpful to deal with smart people, except when their education has made them arrogant. Yet intelligence is not a simple subject. These points may provide some food for thought: • It seems generally agreed that there are many kinds of intelligence. The Law School Admissions Test (LSAT), attempting to predict success in law school, tests only a few. It does not even try to examine all of the skills that do, or should, produce success in law. For example, it does not test the confidence and charisma that make the difference between a nerdy lawyer and one who can keep the attention of a jury; it cannot (or at least does not) test for honesty or fairness; and it is utterly ignorant of “street smarts.” The areas that the LSAT does test receive specialized treatment. A good score on the LSAT does not justify a general claim of superior 212

intelligence. Otherwise, there would not be separate (and very different) standardized exams for medical school, business school, and Ph.D. programs. • Legal training tends to teach law students to become less, not more, aware of the ugly aspects of typical attorney behavior. For example, attorneys are frequently unaware of the harshness that creeps into their ways of dealing with and thinking about people. A loss of awareness may make a person more able to cope with some kinds of tasks, but it is not normally associated with higher intelligence. To the most intelligent human beings – which may mean those who are most attuned to what is necessary for life, liberty, and the pursuit of happiness – some of our legal system’s core theories may seem as absurd as the proposition that two plus two equals five. The next most intelligent humans may recognize these absurdities only after carrying on for a while with the legal system’s theories in mind – as law students, for example, or as parties to a lawsuit. A group even lower in intelligence includes those who fail to perceive the folly until they’ve spent years at it. You go down the ladder from there, until you reach the least intelligent humans, who demonstrate their ignorance of what is good for the species by devoting themselves utterly to the existing system for an entire lifetime, never seeing the destructive nature of their goals and achievements.

What then, explains the differences between those who get into elite law schools and those who do not, or those stars like Posner as compared to the Harvard grads who stumble along on less exalted levels? suggest that, both in college and in law school, LSAT-type intelligence is only a part – and not always an important part – of the difference between the stars and the rest. In almost any non-expert kind of work, and even in some of the expert ones, a merely adequate intelligence can often go further than brilliance if one combines it with stability, persistence, and a practical knowledge of the landscape. For example, I suggest that law students tend to have a significant advantage in law school if they are somewhat older, are happily married, were raised by 213

parents (especially lawyer-parents) who taught them to be comfortable with legal concepts and attitudes, and come from families or cultures that say you find happiness by succeeding (rather than by e.g., developing your spiritual qualities). I have no doubt that Posner understood law school better than his lower-ranking peers did; I just doubt that he knows more about life and what’s really important. That may not be relevant in a book about how to win a lawsuit, but it is very relevant in a book, like this one, that asks how law should function in a good society. I grant that many lawyers do not care whether their activities are helping society or ruining it. There is nothing surprising in that: we’ve all met selfish people. What is amazing is that so many of the law students and lawyers who do care (or at least think they care) are somehow unable to see how much damage and pain our legal system inflicts upon innocent, trusting, productive people whose only mistake was that they failed to spend all their time scheming and worrying about ways to take advantage of someone else or to protect themselves. As a person who never felt that law school made much sense, I still can’t fathom how so many bright people like Posner can go to law school, hear more and more tales of this sort of thing as they go along, and yet somehow become less and less worried about being key participants in it. A person does not have to file or defend a lawsuit in order to discover that the courts often contribute unnecessary misery to the world’s already adequate supply. Most of us have heard of singers, inventors, writers, and other creative people who have wasted years of their lives – years during which they could have been accomplishing great things – being distracted and ruined by lawsuits of various kinds. Many of us, or our families, friends, or other people we know, have spent tremendous amounts of money and have suffered much needless pain in divorces, contract actions, liability actions, and other kinds of lawsuits, or have been unfairly harassed by law enforcement authorities; and many have experienced the frustration of being wronged, visiting an attorney, and discovering that there was nothing we could do about the situation unless we wished to spend more on legal fees than the problem could conceivably be worth.

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This is the nature of the system that employs Judge Posner. He will continue to draw a paycheck from it for the rest of his working career (unless he voluntarily chooses to leave earlier), and will do so regardless of whether the system becomes less, or more, inefficient and unresponsive. These observations would trigger some questions even if he had not expressed his views in a book. At the very least, it suggests that he probably has aboveaverage patience for bureaucratic nonsense. His day-to-day activities, and the views he expresses in Problems of Jurisprudence, might have been very different if he knew more about the effects of his ideas and words upon the people whom he judges. Judges are part of the way we do things, just as the Inquisition and the Holocaust were the way that other people did things at other times in history. The acts may be different – most of the injustices facilitated by our judges destroy lives and homes much more quietly – but you can still hear the echo of wretched, medieval cruelty in our prisons, where mere kids discover that this miserable system fosters rapes and gang beatings. I don’t think most readers of this page would wish that kind of thing on a dog. Posner is a distinguished representative of the judicial establishment. I appreciate his willingness to admit his concerns about the validity of our legal system, and his interest in alternatives. In this book, I have attempted to portray those concerns and interests accurately. But I can hardly admire what seems to be an attempt, by him, to buy our trust on the cheap, by giving us a few morsels of complaint, while he continues to profit from his rank in, and support of, a monstrous system.

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