Judge Posner’s Simple Law

Mitchell N. Berman*

Reflections on Judging. By Richard A. Posner. Cambridge and London: Harvard University Press. 2013. P. 366. $29.95.

The world is complex, Richard Posner[1] observes in his most recent book, Reflections on Judging. It follows that, for judges to achieve “sensible”[2] resolutions of real-world disputes—by which Judge Posner means “in a way that can be explained in ordinary language and justified as consistent with the expectations of normal people” (p. 354)—they must be able to navigate the world’s complexity successfully. To apply legal rules correctly and (where judicial lawmaking is called for) to formulate legal rules prudently, judges must understand the causal mechanisms and processes that undergird complex systems, and they must be able to draw sound factual inferences from multivocal or opaque data.

The problem that animates the book is that, thanks to some combination of disposition, training, and professional incentives, judges are often not adept at these tasks. Indeed, the situation is worse than that. The legal system generates its own complexity (what Posner terms “internal” complexity) precisely to enable judges “to avoid rather than meet and overcome the challenge of complexity” that the world serves up (or “external” complexity, in Posner’s terms) (p. 14). His “reflections” concern mostly how this occurs and how it can be corrected.

If Posner’s choice of noun in the title suggests that the explorations contained in the book will be more casual than systematic and that the analyses more gestural than fully developed, such impressions prove apt. Consisting mostly of revised versions of previously published articles and essays, the book is a somewhat meandering “study of the judicial process mixed with personal recollections, references to a number of [Judge Posner’s] own judicial opinions, and recommendations to judges and judicial administrators,” as well as to lawyers and members of the legal academy (pp. 11–12). Posner’s critical scrutiny ranges widely, latching onto such disparate targets as the Bluebook (pp. 96–104); bloated judicial staffs (pp. 40–50); legal jargon (pp. 111–12) and the delegation of opinion-writing to clerks (pp. 127–28); bad, stilted advocacy (pp. 269–76); unreasoned norms against the use of illustrations, maps, and photographs in judicial opinions (pp. 143–48); overly circumscribed rules against judicial research into facts (pp. 138–43); and much else.

But the principal culprit, in this book as in many of Posner’s previous writings, is legal formalism and, in particular, the textualist and originalist approaches to statutory and constitutional interpretation prominently associated with Justice Antonin Scalia. In 2012, Posner wrote a scathing review in the New Republic [3] of Justice Scalia’s just-published book, coauthored with legal lexicographer Bryan Garner, Reading Law: The Interpretation of Legal Texts.[4] Posner’s review generated substantial attention and provoked heated responses by Reading Law’s defenders, including Garner himself,[5] which prompted a brief reply from Posner.[6] A substantially expanded version of that review constitutes the longest chapter of Reflections, and Posner’s attack on Scalia’s views serves as a focal point and organizing device throughout the book.[7] Accordingly, the main body of this Review will focus on the debate between Posner and Scalia. And that debate, I will argue, illustrates—in ways not yet appreciated by either jurist—what is most fundamentally in dispute between their competing approaches to constitutional interpretation.

The arguments that follow will reveal a double irony. First, Posner’s criticisms of Scalia and Garner are less forceful than he believes (although more forceful than Scalia and Garner’s defenders acknowledge) precisely because Posner fails to appreciate the irreducible complexity of law. The world, Posner rightly insists, is complex. Yet the central thrust of his argument is that law is excepted from this general truth. Law’s complexity, in Posner’s eyes, is only contingent. Legal elites—judges most particularly—create complexity for corrupt or self-serving reasons. Law, Posner maintains, can be simple if stripped of this gratuitous and contrived complexity. I believe this is mistaken. More importantly, it is a mistake that lies at the heart of originalism’s appeal.

Contemporary originalism’s center of gravity is not, contrary to the common rhetoric, fundamentally a position about the activity denominated “interpretation.” It is fundamentally a claim about the content of law. Contemporary originalists by and large believe that what the law is—what our legal powers, duties, and rights are—is fully determined by semantic qualities of promulgated texts.[8] What those texts say is, for that reason, what the law is. As Steven Calabresi, a former clerk for Justice Scalia and a cofounder of the Federalist Society, puts it in an article coauthored with Saikrishna Prakash, a former clerk for Justice Thomas: “Originalists do not give priority to the plain dictionary meaning of the Constitution’s text because they like grammar more than history. They give priority to it because they believe that it and it alone is law.”[9] That is the now-orthodox originalist contention: our supreme law is just the communicative content of the constitutional text.[10] It is a breathtakingly simple picture of law. And while, admittedly, originalism might not depend on such a simple account of the determinants or constituents of law, nonoriginalism probably does depend on its denial. In short, the canard that law is simple is vastly more congenial to modern originalism than it is to whatever nonoriginalist picture of law Posner might have in mind, even if inchoately.

That is the first irony. Here is the second. If the standard originalist conception of law is mistaken, the community of scholars and legal practitioners is far from having settled on the correct, more complex, account. To be sure, some thoughtful scholars and lawyers believe that H.L.A. Hart (as standardly interpreted) got it right,[11] others cast their lots with Ronald Dworkin,[12] and a few are actively developing and defending accounts of their own.[13] But many others, especially among jurisprudentially sophisticated nonoriginalists, believe that law has yet to surrender its secrets. Perhaps we will never adequately understand how law works—how the normative entities that are legal powers, duties, rights, and permissions correspond to or are produced by such facts in the world as the enactment of legal texts, the issuance of judicial opinions, and the behaviors and dispositions of legal actors. But if we are to gain a richer and more accurate understanding of law than orthodox originalism offers, it will be, almost certainly, thanks to advances in legal theory. Yet Posner, here as elsewhere, is openly disdainful of legal and constitutional theory—not only of its current practitioners but of the field itself.[14]

That is unfortunate. Reflections on Judging is an interesting and often engaging book, but Posner’s arguments against textualism and originalism fall some considerable distance short of his stated ambitions. Whether originalism provides the correct account of legal content is a theoretical question. And what is the correct account if not originalism? That too is a theoretical matter. Posner’s enterprise depends, in ways he has not yet recognized, on answers to these and similar questions. He should not be so dismissive of the field that aims to supply them.

Part I of this Review offers a thumbnail summary of Posner’s exploration of complexity and the law. Part II introduces and evaluates his broadside against Scalia (alone and with Garner). Part III examines what Posner’s criticisms of Scalia have to do with his stated topic—complexity and the law—and concludes that the relationship is far from straightforward. Part IV offers an account of what is really at stake in Posner’s dispute with Scalia.

*      Leon Meltzer Professor of Law, University of Pennsylvania Law School. I am grateful to Mariah Ford for very helpful research assistance, to Kevin Toh for incisive comments on a previous draft, and to Bryan Garner for generously offering corrections, notwithstanding his disagreement with several of my conclusions.

[1].     Judge, U.S. Court of Appeals for the Seventh Circuit; Senior Lecturer in Law, University of Chicago Law School.

[2].     E.g., pp. 6, 111, 131.

[3].     Richard A. Posner, The Spirit Killeth, but the Letter Giveth Life, New Republic, Sept. 13, 2012, at 18, available at http:/‌/‌www.newrepublic.com/‌article/‌magazine/‌books-and-arts/‌106441/‌scalia-garner-reading-the-law-textual-originalism.

[4].     Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts (2012).

[5].     E.g., Bryan A. Garner, Response to Richard A. Posner, Law Prose (Sept. 5, 2012), http:/‌/‌www.lawprose.org/‌blog/‌?p=570 (“[Posner] instead smears [Reading Law] with accusations of sloppy research and poor case explanations. . . . Judge Posner’s critiques repeatedly miss the mark.”).

[6].     Bryan A. Garner & Richard A. Posner, How Nuanced Is Justice Scalia’s Judicial Philosophy? An Exchange, New Republic (Sept. 10, 2012), http:/‌/‌www.newrepublic.com/‌article/‌politics/‌107001/‌how-nuanced-justice-scalias-judicial-philosophy-exchange.

[7].     E.g., pp. 2, 14.

[8].     Steven G. Calabresi & Saikrishna B. Prakash, The President’s Power to Execute the Laws, 104 Yale L.J. 541, 551–53 (1994).

[9].     Id. at 552.

[10].     At least putting aside the impact of constitutional decisions by the judiciary. How the proposition in the text would have to be qualified to accommodate judicial precedents is famously controversial among originalists.

[11].     E.g., Richard H. Fallon, Jr., Constitutional Precedent Viewed Through the Lens of Hartian Positivist Jurisprudence, 86 N.C. L. Rev. 1107 (2008).

[12].     E.g., James E. Fleming, Living Originalism and Living Constitutionalism as Moral Readings of the American Constitution, 92 B.U. L. Rev. 1171 (2012).

[13].     E.g., Scott J. Shapiro, Legality (2011) (conceiving of law as social planning); Mark Greenberg, The Moral Impact Theory of Law, 123 Yale L.J. 1288 (2014) (maintaining that law is the moral impact of the relevant actions of legal institutions).

[14].     E.g., pp. 166, 220, 234; Richard A. Posner, Against Constitutional Theory, 73 N.Y.U. L. Rev. 1 (1998).

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