To call Judge Richard Posner prolific is an obvious and trite truism. I have a whole shelf devoted to his books (I have 15 of his 24 books), and am proud to add his most recent one, “How Judges Think,” available here, at amazon.com for $19.77, and here, at Barnes and Noble.com ($21.56 members, $23.96 non-members). At a talk at Columbia University School of Law on March 11th, Judge Posner is reported to have joked, “I was thinking of calling the book Do Judges Think? or Which Judges Think?” If those in attendance had read the book before hand, though, they would have seen that it is law professors, not judges, who come in for criticism (other than former Israeli Supreme Court Justice Aharon Barak, who is excoriated once again -- in chapter 12 for “judicial cosmopolitanism").
No blog can do justice to the vast scope and insights contained in this very important book, a book that provides us with the benefit of Judge Posner’s 27 years on the bench (he was appointed to the 7th circuit in 1981), and a lifetime of being one of the world’s great thinkers. There are important chapters on the Supreme Court as a political court (10), comprehensive constitutional theories (11), the judicial environment (5), economic and influences on judging (6), judges as legislators (3,4), theories of judicial behavior (1), and external and internal constraints on judges (5,7). As interesting as these are, it is the most pragmatic aspects of the book that I will mostly focus on, for it is these sections where Judge Posner is explaining what judges do. I focus on chapter 8, “Judges are not law professors,” but please also see chapter 9, “Is pragmatic adjudication inescapable?”
Judge Posner begins chapter 8 by stating “academic critique of judges and judges has little impact these days on judicial behavior.” (p.204). As he notes, judges “do not care greatly what law professors think of them”(p.205), not because of judicial hubris (god forbid such a thing exist!), but because:
Many judges think that academics do not understand the aims and pressures of judicial work and that as a result much academic criticism of judicial performance is captious, obtuse, and unconstructive. This sense is shared by appellate judges, engaged in quasi-scholarly work of opinion writing, including appellate judges appointed from the professioriat. (p.205)
The feeling is mutual, though, as Judge Posner notes that few academics care about judges other than Supreme Court justices. I would add that too many academics don’t respect the work that judges do, certainly at the trial courts. To level this out, I would add that the same criticisms Judge Posner makes about academics should be directed toward federal judges in their all too often contemptuous attitudes toward Congress, even though both federal judges and members of Congress are generalists and have distinct pressures. And I would throw academics into this mix on this point: I have made a careful study of the legislature process for about 25 years, and having been a professional drafter of statutes for some of that time, I can say that other than those very few law review articles written by former congressional staffers, the hundreds of articles and books I have read by prominent scholars of statutory interpretation bear no resemblance to the work I did professionally, and as a consequence, are of zero utility other than in furthering academic careers.
Judge Posner wisely notes that the primary audience for appellate judges like himself is the other judges on the panel, whereas the primary audience for academics is other academics. (p. 206). I would add that the primary audience for legislation is other members of Congress, and not, as judges are wont to think, judges; certainly when I was drafting a statute, I wanted it to be clear in the event it was ever litigated, but my first goal was getting enough votes to get the bill passed, and in a form that expressed the policy objectives that led to the initiative in the first place: recognition of this legislative reality leads, by the way to purposive interpretation of which Judge Posner (although he would call himself a pragmatist) is an excellent practitioner. Legislatures act in response to problems—legal, political, social, cultural, or all of these—and since at least the 1584 opinion of the Barons of the Court of Exchequer in Heydon's case, 76 Eng. Rep. 637 (Ct. Exchequer 1584) which stated that “the office of all the judges is always to make such construction as shall suppress the mischief, advance the remedy, and to suppress subtle inventions and evasion for continuance of the mischief and evasion … and to add force and life to the cure and remedy, according to the true intent of the makes of the Act pro bono publico,” courts have attempted to interpret statutes consistent with their perception of the legislature's purpose. (Since Justice Scalia has come along, a few judges differ about where one finds evidence of Congress's purpose, but that's a different issue).
Examining the purpose of the law to be applied in a case – whether statutory-based or common law-based is also the advice Judge Posner gives to those who argue before him, and I was delighted to see that the example he chose to illustrate this was a case I argued before him, Ty, Inc. v. Publications International, Ltd., 292 F.3d 512 (7th Cir. 2002):
Deciding a case, moreover, is judging a contest, though, pace Chief Judge Roberts, it is not like umpiring a baseball game. A contest, a dispute, does not have the form of an article topic, even when the topic has a binary form. A law review article might take a position pro or con whether intellectual property rights have been construed too broadly and should be cut back. But the abstractness of such an issue would set it apart from a dispute over whether the publication of an unauthorized photograph of a copyrighted Beanie Baby (a “soft sculpture” in copyright jargon) is a “fair use” when the photograph is part of a guide for collectors of Beanie Babies. The judge is wont to ask himself in such a case what outcome would be the more reasonable, the more sensible, bearing in mind the range of admissible considerations in deciding a case, which include but are not exhausted by statutory language, precedents, and the other conventional materials of judicial decision making, but also including common sense, policy preferences, and often much else besides. (page 207).
When I argued that case, I had been a copyright lawyer for about 20 years, and had published a treatise on fair use 17 years before, as well as a number of law review articles on fair use. My brief was not, however, a theoretical exposition on fair use, but rather, as Judge Posner, observed, an effort to explain what outcome was the more reasonable, and made more sense. In large part, as an advocate, your freedom of action is determined by what side you are on and what the facts are. In the next appellate fair use case I argued – and lost – in the Second Circuit, Bill Graham Archives v. Dorling Kindersley Ltd., 448 F.3d 60 (2d Cir. 2006), my brief was equally pragmatic, and the tone even more conversational than in the Ty case, the outcome on the facts of that case that seemed the most reasonable to the court was to rule for the other side, and I can understand why they thought so: my efforts to explain why I thought the outcome I favored was more reasonable simply didn't resonate, as was painfully evident at oral argument. It is true that the panel might have the outcome differently, or more narrowly, for there are many different styles of judging. Some judges are Talmudic in their parsing of statutory language or precedent; some are deconstructionists, taking everything apart and putting it back together in a way that makes sense to them; and some, like Judge Posner try to figure out what is the most pragmatic result, guided by the factors he listed in the above quote, and then write an opinion that is straightforward in explaining why the result is the most pragmatic -- as compared to falsely pretending the result was dictated by an external force (e.g., the statute or precedent).
The Ty case is a great example of his approach: his opinion reads like a time-line of his thought processes, the end of which is – “oh yeah, there are these statutory factors in section 107, but they aren’t helpful here.” To me, in the case of fair use, his approach is what Congress intended – common law judging of a common law doctrine -- and not, as others might think, a failure to “follow” the statute. It is purposive judging (which is not the same thing as ad hoc judging or what the legal realists or the Crits assert judges do), and it not only has been around since at least 1584, it will be with us for a long time in the future. We have Judge Posner to thank for once again for spelling it out for us. Buy the book and learn from it.