February 25, 2020

Reading Uncertainly? ‘Divergent Paths – The Academy and the Judiciary’ by Richard A. Posner

Judge and Professor Posner explores the apparent diverging paths of our judiciary, especially the Federal, from the academies that teach our would-be lawyers, some of them advancing to become judges. This is a sobering view. Forgive me for an extensive quote, but it summarizes in one page the 400 pages of his thesis:

“ . . . at this writing the United States exhibits an unprecedented array of failed social systems. The political system is in disarray – Congress is a mess, the executive branch poorly managed. The Supreme Court bears some of the responsibility for congressional malfunction because of its refusal to allow reasonable limitations on campaign expenditures and its refusal to outlaw, as a denial of equal protection of the laws, political gerrymandering.

Likewise in disarray is the medical industry (as in matters of cost and coverage, preventive medicine, and the care of the elderly and the poor); also education (other than in the elite private and public high schools and the elite colleges and universities), public pensions, immigration, federal taxation, and the nation’s transportation infrastructure.

Our prison systems and our criminal laws (especially sentencing) are an international disgrace, and the judges, including federal judges, are complicit. A number of state and local governments are seriously underfinanced. Our foreign and national security policies are pervaded by a degree of indecision unseen since the 1930s. Although admired by most Americans, our armed forces are plagued by serious cost, competence, and leadership problems.

Economic inequality has reached a dangerous level. There are too many guns in private hands. Conflict between religious and secular views on issues of public policy such as abortion, contraception, same-sex marriage, and the teaching of evolution is increasingly bitter. The government cannot get a handle on global warming or environmental regulation generally.

There are sectional tensions, racial and ethnic tensions along with sexual and religious ones, regulatory failures everywhere, bureaucratic incompetence, widespread corruption and fraud both public and private, and a weakening of family structure as reflected in the greatly increased prevalence of single-parent households. One can hardly expect the federal judiciary to be completely immune from so pervasive a national malaise, and it isn’t.

And this analysis was written before the death of Justice Scalia and the election of the loud-mouthed, newly elected president.

Is there any hope for us?

But there is!

From what he calls this gallimaufry (a confused jumble of things), Judge Posner extracts, first, notable deficiencies in our judicial system, followed later by his numerous suggestions for change. He is not an “originalist,” one who puts his faith entirely in earlier mandates such as our Constitution. “As society changes, so must the law,” is his thesis. He also acknowledges his own missteps: “Very wrong was I!” and “I don’t have a solution to this problem.”

At the end of Chapter 6, he summarizes his 55 “problems” and 48 reasonable and doable “solutions.” Best yet is his quote from Oliver Wendell Holmes: “certitude is not the test of certainty. We have been cocksure of many things that were not so  …  And this again means skepticism.” With this admonition in mind, Posner gives us a note of optimism.

Posner attributes much of our judicial problem to the “adversarial” nature of our system, in which lawyers tee off against one another in the courtroom, with judges as observers. He prefers the European “inquisitorial” approach, not in the sense of the Spanish Inquisition, but rather in the sense of judges acting as questioners and researchers, a third voice in the hearings.

He optimistically sees “the law” as a fluid, evolving instrument that “does not have a solid foundation. It is ultimately a collection of rules and procedures, highly malleable, often antiquated, often contestable, often internally conflicted, for managing social conflict – a set of aging, blunt tools.” Both we and the law can and should evolve. That is why we have judges, to help in interpretation.

But I do have a minor qualm with his writing. About halfway through his argument, he suggests a “good judicial opinion requires:

  1. No jargon.
  2. No footnotes.
  3. Forget citation form.
  4. Delete every superfluous word.
  5. Use adverbs and adjectives sparingly.
  6. Avoid section headings.
  7. Be grammatical.
  8. Brevity.
  9. Be candid as well as truthful.”

These are excellent admonitions, straight from Strunk and White’s Elements of Style. But Posner often fails to follow his own advice! Take footnotes, for example. In the 403 pages of his exegesis, he gives us 453 (!) footnotes, one of which is more than a page long. They are useful, perhaps, to legal minds, but to the uninitiated?

He frequently utilizes the word “utilization” instead of the simpler “use.” And he is the archbishop of parenthetical phrases, often inserting two or three within a single sentence (I confess to doing this myself – this one being an example.) His very last and very first sentences include those diverting asides. Am I being too pedantic? No. I fully agree with Posner’s recommendations.

Despite my minor reservations, Judge Posner’s analysis of our aging judicial system should be required reading.

Editor’s Note: ‘Divergent Paths’ by Richard A. Posner, is published by Harvard U. Press, Cambridge 2016.

Felix Kloman

About the Author: Felix Kloman is a sailor, rower, husband, father, grandfather, retired management consultant and, above all, a curious reader and writer. He’s explored how we as human beings and organizations respond to ever-present uncertainty in two books, ‘Mumpsimus Revisited’ (2005) and ‘The Fantods of Risk’ (2008). A 20-year-resident of Lyme, he now writes book reviews, mostly of non-fiction that explores our minds, our behavior, our politics and our history. But he does throw in a novel here and there. For more than 50 years, he’s put together the 17 syllables that comprise haiku, the traditional Japanese poetry, and now serves as the self-appointed “poet laureate” of Ashlawn Farms Coffee. His wife, Ann, is also a writer, but of mystery novels, all of which begin in a bubbling village in midcoast Maine, strangely reminiscent of the town she and her husband visit every summer.


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