Posner Conversation on How Judges Think

Something that hasn't gotten the attention it deserves in the blogosphere is the conversation that Richard Posner had with a Duke Law School class led by David Levi and Mitu Gulati.  The Duke Law Journal has recently printed it.  The conversation covers a lot of ground (like Posner's shifting political orientation and the confirmation hearing for Chief Justice Roberts -- notable for Posner's amusing lines, "The senators have staff who prepare tough questions for the nominees. But the senators don’t know how to follow up on the question that someone else created. The result is that if you are adept like Roberts, you can get away with not answering the question. He got away with saying things like that stuff about balls and strikes.").  The conversation is mostly focused around Posner's book, How Judges Think.  

We hear about the intended audience for How Judges Think -- academics, law students, some lawyers.  Not other judges (I guess this shouldn't surprise us).  HJT invites a comparison, obviously, with Cardozo's Nature of the Judicial Process -- and I suppose his audience was similar.  (One of my favorite lines in the conversation is about academics' ususal audience: that they usually write for an audience of one.  That's certainly true for some of my work -- though I didn't realize other people generally had such limited (?) goals.)

And we learn about what judges think about academics' criticism of their opinions (not much):

But the criticism of opinions is not terribly useful. Judges don’t pay a lot of attention to these critiques. They don’t think law professors are giving them much in the way of useful, constructive criticism. And it is not that useful to be looking backwards at errors in past opinions. By the time a judge reads a law review article criticizing or analyzing an opinion of his, it is likely that a lot of time has gone by since the opinion was written. Happy judges don’t want to look back at their mistakes.

We hear about the vagaries of the evolution of the law, how tests and metaphors emerge by almost happenstance:

I had a case that involved bits and pieces of evidence of discrimination. I talked about the “mosaic of discrimination.” Years later, I realized that a “mosaic” rule had emerged. But that was ridiculous. You don’t need a mosaic.  Judges love clichés. They are always grasping at clichés.

Judge Posner also makes a common criticism of academics -- that we are too esoteric and divorced from practice.  I think he's someone who can deliver that message in a way academics can hear it:

Today, the leading academics do not see intellectual profit in writing a treatise or a restatement. Today, cutting-edge law articles use social science. They draw from fields like psychology, economics, et cetera. They don’t work with doctrine as much. Much of the current academic publishing ends up being too academic and esoteric.  As for the restatements and treatises today, they are competent. But the work of producing them is not engaging the leading academics any longer.

The interview is really entertaining; Judge Posner has some great turns of phrases.  Let me, though, highlight a couple of things that are perhaps of particular interest to legal historians.  When I first read How Judges Think, I wondered, does it also describe "how judges thought?"  That is, is there something to the American judicial method that's fairly stable across time?

One of the things that Posner suggests is that studies of judicial biography are good ways of getting at how judges think (or thought). That's obviously correct -- if we want to see how the whole world fits together, looking at how the world fits together within one individual is a great way of going about it.  Jurisprudential biographies are the way to go -- looking to how judges' ideas fit together; I'm not so sure we need so much of their more personal details.  (Of course, we then need to put together a series of those studies, to get a sense of what's idiosyncratic to one judge and what's stable across a bunch of them). He says:

I thought something like my book on Cardozo was more useful as a way of studying judicial behavior than full-length biographies, but the suggestion hasn’t been picked up.  Andy Kaufman’s biography of Cardozo, though lengthy, is the best of the judicial biographies. Bruce Murphy’s biography of Douglas is also good, though it has inaccuracies. I published an article on judicial biography some years ago, Judicial Biography, that you might find useful.

And there is one other part of particular interest to historians and other social scientists who come to the law teaching world: that being in a law school changes the teacher and scholar.  Historians who teach in law schools are changed by the needs of the students and the institution and those changes and experiences enrich us as scholars.  There's a two-way exchange of ideas.

Anyway, I go on too long -- read the whole conversation here.