Following up my post on the interview of Richard Posner by the Duke Law School class co-taught by David Levi and Mitu Gulati, I thought I'd talk a little about Dean Levi's review of How Judges Think, which has also appeared recently in the Duke Law Journal.
First off, the pairing is most unusual (unique, so far as I can recall, but perhaps there's another one out there like this): Dean Levi is a former federal judge who's now an academic, reviewing a book of a former academic who's now a federal judge. The perspectives of Levi and Posner are ones that precious few of us will ever have. Given their backgrounds, if we want to know something about how judges think, these are two people we need to listen to.
Two other observations up front: Levi's interested in whether this book is about "How Judges Think" or about how "Judge [Posner] Think[s]". For Levi boldly suggests that Posner's "generalizations about the ways of the judge and the world are ex cathedra pronouncements that generally lack any identified objective support outside of his own experience and belief. For may of his assertions, it would appear that his dataset of judges is a set of one -- himself."
And then Levi puts his finger on questions that perplex legal historians who've come to have an accepted wisdom that common law judges remade the law to promote economic growth in the nineteenth century. (I actually think that common wisdom should be altered somewhat to be phrased as judges remade the law to promote middle class values. But that little turf conflict must await another time.):
How does the judge, particularly the appellate judge, know what the consequences of a new rule of law will be and whether those consequences are likely to be good for society? ... When the record is not developed, how does the judge make sound decisions about the social policy consequences of different legal rules?
As I say, such questions are central to legal historians, for we have a sense that judges remade the law to bring it into line with their values (pro-market, though allowing regulation of property in a lot of instances). And one of the questions legal historians have asked is, if judges were trying to remake the law to promote economic growth, how would they determine what the rules should be? That is, doesn't it require an awful lot of insight -- and perhaps more than judges possess -- to figure out the effects of their rules? How might judges do this? By drawing on a well of common cultural ideas about what's good for the economy, perhaps? This is one of the reasons why the reconstruction of jurisprudence in recent years has tried so hard to place the judges into their intellectual context. (I'm thinking here of such leading works of legal history as G. Edward White's Marshall Court and Cultural Change, Kent Newmyer's Supreme Court Justice Joseph Story, and -- in an earlier generation -- Perry Miller's Life of the Mind in America from Revolution Through Civil War.) That's a system-wide explanation, so it may fit some judges better than others.
And, of course, one of Richard Posner's early articles ("A Theory of Negligence") was an empirical study of nineteenth century tort cases, from which he drew the conclusion that tort law in railroad cases tended towards efficiency. That was also one of the first pieces of Posner's work I ever read -- and indeed one of the first pieces of legal scholarship that I read. What seemed particularly persuasive to me was that data fit with how you might hypothesize judges behave: that they remake the law to promote economic growth and that they would work in conjunction with the dominant ideas of utility in both economics and moral philosophy of the late nineteenth century.
Two points here on the history, before I get back to Levi's review. First, an under-utilized way of trying to figure out just how much an individual judge's philosophy contributes to a decision is to look at judicial opinions on a single, new issue, which are decided more or less simultaneously. That allows us to get a sense of differences between judges. One of my favorite examples along these lines comes for the Confederate State Supreme Courts, which decided a bunch of issues related to the prosecution of the war almost simultaneously. Though the results were largely the same, the opinions differed rather dramatically. So we can hold constant the issue and get a sense of how different judges approached that issue. Second, I think we should try to focus on the reasoning styles of judges, not just the outcomes. And here we want to develop systematic ways of using rhetoric in judicial opinions to get at reasoning styles. This can allow us to bring even more precision to judicial reasoning styles than a yes/no, or agreement/disagreement variable. I want to talk about this in more depth at some point -- with perhaps particular reference to William Fisher's work on property and reasoning styles (from the Emory Law Journal in 1990). He establishes a theoretical framework, which I think we can link to the hundreds of judicial decisions on vested rights before the Civil War.
Ok--back to the review. As Levi tells it, the book's primary thesis is that:
judicial decision making is not governed strictly by logic or the reasoned application of the law—text and prior decisions—to facts, a process he calls “legalism” and the adherents of which he calls “legalists.” According to Posner, “there is a pronounced political element in the decisions of American judges, including federal trial and intermediate appellate judges and U.S. Supreme Court Justices.” There is also a personal element to judging, he avers, because a judge’s personal characteristics “such as race and sex; personality traits, such as authoritarianism; and professional and life experiences, such as having been a prosecutor or having grown up in turbulent times influence judging.” Political and personal factors, according to Posner, generate preconceptions, often unconscious, that affect judicial decision making.
This has a particular resonance with the Sotomayor hearing, for a lot of what Posner describes sounds like what we've learned from those hearings is scary. And while Posner has the sense that his claims are controversial, Levi finds them commonplace:
These claims may have been shocking in the late nineteenth century when Justice Holmes asserted that history has more to do with the development of the law than logic, but in a post legal-realist world, these claims are the new orthodoxy. According to Posner, however, most judges would vociferously deny that their decisions are ever influenced in the slightest by “political” or personal considerations, and most judges pretend that they are finding the law and not making it. For what it’s worth, from the ease of my own armchair, I would take just the opposite position: I would say that most judges are more than aware that they are “making law,” in the sense of amplifying it, when they apply precedents or statutory language to particular factual settings. I would also contend that most judges, particularly the very best ones, are acutely aware of the potential of personal factors, including judicial philosophy, life experience, and personality, to affect how judges approach and then decide legal issues. I would further say that part of the art of judging rests in recognizing the existence of these potential influences and then dealing with them in some appropriate way, depending on the nature and strength of the influence.
Levi's main point is that Ponser is insufficiently empirical in assessing how judges think. Some may think that an odd criticism given how deeply empirical so much of Posner's work is; however, I suppose this book seeks to provide a framework for subsequent investigation. Certainly a lot of this can be empirically tested (though not necessarily easily).
There's a lot in this review. One of the payoff paragraphs is here:
It is not nearly good enough to point out that judges and jurors, like others, have preconceptions. What would be useful and important to know is whether these preconceptions are fixed and strong, whether they may become fluid as a trial develops, and whether there are fair procedures for addressing them. Judge Posner does not seem to appreciate the dynamic nature of litigation and how many times in a case or trial a judge will rule one way and then reverse course later. What does this say about the strength of initial preconceptions? It would be important to know whether the ability to overcome preconception and keep an open mind is a part of the judicial craft that can be studied, learned, and improved upon. If scholars and judges could study preconceptions in some systematic way, they could ask many interesting empirical questions about them. And they might develop new methods for neutralizing, cabining, or, at least, revealing their role. Without data, however, Posner is at a loss to move forward our understanding and procedures. His bare assertion that judges are prisoners of their conscious and unconscious preconceptions diminishes the judicial role and the striving by conscientious judges for objectivity and fairness. His assertion will become fodder for ideologues who believe that everything is “political” and that all relationships are defined by power.
The concluding couple of lines link Levi's argument about the need for empirical study with how he sees judges thinking:
judges who think that they know what is sensible or beneficial merely by dint of education or intellect are just as formalist as the “legalists” to the degree that they rely upon a fixed set of theories of human nature, economics, history, or political economy out in the ether to deduce rules of law, rather than building such rules from the ground up by responding to the particular facts of a particular situation and dispute. The trial judge who, after hearing argument, honestly identifies what the grounds of decision will be and permits the parties to address those grounds and develop in the record a factual basis in support or derogation of those grounds— including consequences to the greater society, if those consequences will be a basis for the decision—is to my mind the best trial judge. Similarly, the appellate judge who plays by the rules, abiding by the record presented and remanding to the district court for additional fact finding when necessary, is the best kind of appellate judge. And these judges are neither legalists nor pragmatists. These judges are empiricists.
Ah, so now we just need to go out and test Levi's thesis: are judges empiricists? I suspect we'll be hearing a lot about Levi's theory of the empirical jurist in the coming years.