How to learn from Dick Posner

Tuesday night I went to the Federal Bar Council May Day Dinner at the Waldorf-Astoria. Judge Richard Posner received the Learned Hand Award for Excellence in Jurisprudence. A meaningless Presidential proclamation was read. After dinner, there was the dreaded introduction of the honoree; dreaded because the introduction was, as many of these are, too long and eminently predictable. In short (and it wasn't short), we were told Judge Posner has always been superbrilliant and superhumanly productive. But everyone already knows that. I assert his brilliance and productivity are necessary, but not sufficient, causes for why he has justifiably received so many awards and why he deserves a place in the Pantheon of the Greats. A conventional introduction of an unconventional person will always fall short. This post attempts to explain why.

Judge Posner began his remarks with a few witty comments about introductions and then noted that previous honorees had not spoke about Learned Hand. This led Judge Posner to worry that deceased judges (a category into which he observed he would eventually be placed) are quickly forgotten, even as their names live on in awards. He discussed Gerald Gunther's epic biography on Hand, and how it failed to capture the essence of Hand's jurisprudence, wasting its time on Hand's (many) personal idiosyncrasies and on the field of constitutional law, about which Hand said little. Helpfully, Judge Posner offered up his own view of what a useful biography should have covered, reminiscent, I think, of his own study of Justice Benjamin Cardozo: Gunther could have emphasized the underpinnings of Hand's general approach to law and to solving problems.

How should an introduction desirous of capturing Judge Posner's uniqueness have been structured? How could it have avoided the type of faults Judge Posner found in Gunther's biography of Hand? This way: by giving us insights into Judge Posner's approach to law and solving problems. This is not a difficult task since Judge Posner has been quite open about such matters and in fact, his insistence on transparency is one of his most striking characteristics.

A great place to begin is with Judge Posner's December 10, 2001 New Yorker interview with Larissa MacFarquhar, in particular his statement therein that "I'm not fully socialized into the legal profession. I'm like an imperfectly housebroken pet. I still have difficulty understanding - and this is something most people get over in their first two weeks of law school - lawyers spouting things they don't believe. If someone is obviously guilty, why do you have this rigmarole?"

Judge Posner applies this belief in the importance of being honest to judges no less than lawyers: courts should give litigants and the public the unvarnished basis for a decision. An example: last year, at another award ceremony for him in which I participated, he mentioned that he put in an opinion the fact that his circuit considers the reputation of the district judge below in determining the amount of deference to give. Judge Posner observed that afterwards the district judges "rose as one in a howl of outrage" at this. But it is true, as a friend who sits on another circuit confided to me immediately after Judge Posner said this, although he added that when he once put this in a memo to two other members of a panel, one wrote back saying it was inappropriate to say so, even internally. But what's more inappropriate? To consider something but not admit to it, or to admit the obvious? We typically say candor is the best policy, but Judge Posner is rare for living by it. My advice to those lawyers who appear before him is to learn candor quickly.

Those who are fortunate to know Judge Posner personally or to have even spent some time talking to him are struck by a few things: his informality ("Please call me Dick"), his gentle nature (although on the bench he is transformed into a ruthless questioner), and his complete willingness to re-examine his own views in light of others' criticism, which he eagerly seeks out. One example: his 1990 book "The Problems of Jurisprudence" is dedicated to the memory of Paul Bator. In the Preface, Judge Posner explains that Professor Bator "in a review of an earlier book of mine called me a 'captive of a thin and unsatisfactory epistemology.' I found this an arresting accusation, and one with considerable merit, and it stimulated me to examine the problems of jurisprudence in greater depth than I had ever expected to."

Many people claim they listen to criticism, very few do, and virtually no one ends up significantly changing their position. Another person who does is, not coincidentally, another great Judge, Pierre Leval of the Second Circuit, who was once quipped to me: "The best way to know you have a mind is to change it." Both judges are great judges, I assert, because their desire to satisfy themselves that what they are saying is right is an integral part of who they are. And they will not stop examining a problem until they are satisfied they have properly understand it. This approach stems from two sources. First, thinking all problems through afresh: it doesn't matter what precedent or some other source says: what do you think the right result is? (This doesn't mean automatically rejecting precedent, but it does mean you have to analyze the problem yourself rather than relying on someone else's). Second, because one rarely comes to a problem without some preconceived idea, you must possess a healthy appreciation for the positive role of doubt. The great American philosopher/scientist Charles Peirce (a favorite of Judge Posner's) wrote that "both doubt and belief have positive effects upon us ... The irritation of doubt causes a struggle to attain a state of belief." Mortimer Adler said much the same thing in his aphorism that "It is only in the realm of doubt that we find truth." It is one thing for pishers like me to have doubt (I should); it is quite another for a talmid chacham like Judge Posner to have it and practice it so rigorously, but that he does is, I assert, an important source of his brilliance.

A final point I would have made in an ideal introduction is that Judge Posner's self-professed lack of socialization is also seen in, and perhaps principally seen in, his pragmatic approach to judging. I refer readers to his 2003 book "Law, Pragmatism, and Democracy" for a fuller explanation, and since this is a copyright blog, I want to give a copyright example. On April 5, 2002 I argued a case before panel of the Seventh Circuit consisting of Judges Posner, Rovner, and Chief Judge Flaum. A little over six weeks later, the opinion, by Judge Posner came out, Ty, Inc. v. Publications International, Ltd., 292 F.3d 512, reversing the district court as I had requested. There were good fair use issues in the case. I had written a very classical brief on fair use, running through all the factors. (Here's a link to the circuit's recording of the oral argument: Oral Argument)

The opinion, however, barely mentions Section 107, and when it does, it does so only to criticize it: "We have thus far discussed the application of the fair-use doctrine in terms of the purpose of the doctrine rather than its statutory definition, which though extensive, is not illuminating." Id. at 522. Factors (1) and (2) are then described as "empty," factor (3) is described as "inapplicable," and the fourth factor is given the left-handed compliment of "at least glancing at the distinction we noted earlier between substitute and complementary copying ... " Id.

I had, at that point, I carefully read every fair use opinion ever published, going back to ancient England; as a Policy Planning Advisor to the Register of Copyrights I had testified as the lead witness before a joint hearing of the House and Senate on fair use (followed by testimony from three Second Circuit judges); I had written a treatise on the subject that had been cited by the Supreme Court and many lower courts, and I had drafted an amendment to Section 107 in 1992 as counsel to the U.S. House of Representatives' Committee on the Judiciary, but I had never read anything like Judge Posner's opinion. After my initial surprise, I realized that this type of decision making was more faithful to the common law nature of fair use and its purposes than anything I or the vast majority of modern decisions had said (especially those after 1978). It hearkened back to the days when the English common law judges and American judges like Joseph Story were developing the doctrine. This was not judging by the numbers, but by the purpose. It was real judging and it was far more faithful to the statute than those opinions and commentary that run through the factors. It doesn't matter whether one agrees with the result in the case; the point is the methodology. And that's what makes Judge Posner different, his willingness to be go beneath the surface as he would put it; not arbitrarily or subjectively, but to illuminate and apply a statute's purpose, to see that purpose afresh and to state it clearly and honestly.

Larissa MacFarquhar described Judge Posner as "the most mercilessly seditious legal theorist of his generation." I agree and I hope that's why the Federal Bar Council was honoring him, but in any event, to honor to the honoree, the introduction should have discussed sedition, not convention.