Posner's Odd Ideas About Law Professors, Law Clerks, and Legalistic Judicial Opinions

Brian Tamanaha

Yesterday I posted about Judge Posner’s assertion that authoritarian personalities have an affinity with excessive legalism, while nonauthoritarian personalities tend to be pragmatists (p. 100,179). His claims are psychological speculation, needless to say, strongly reminiscent of Jerome Frank’s (1930) argument that lawyers and judges held false beliefs in the certainty of law owing to an infantile need for order.

In this post I will say a bit about his views of law professors and law schools. Posner does not have a high opinion of the law professoriate. He claims that judges “do not care greatly what law professors think of them.” “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.” (205). Federal judges have directed a lot of invective at law professors in the past two decades—out of touch, engaged in worthless scholarship, etc.—so there’s nothing surprising about any of this.

Posner then goes on to make an argument about law schools that strikes me as factually incorrect, and then gets strange. He claims that law professors are “terrific at taking apart the formal grounds of a judicial decision” but “have (or express) little understanding of how cases are actually decided.” Law professors have a highly legalistic understanding of judicial opinions, “mistaking style for substance, the logic of exposition for the logic of the decision itself.” (219) Law professors, he claims, have failed to learn the basic lessons taught by the realists, and wrongly think judicial decisions are determined by rules and precedents.

The incorrect part of these assertions, in my view, is that many law professors appear to be highly skeptical about judicial decisions, and know all too well that a written opinion is constructed to justify the decision. Professors teach students how to master and deploy the standard modes of legal argumentation (to, in Posner’s terms, play the rules of the game). But to suggest that law professors are modern-day formalists not tuned into reality is just wrong. (Judge Alex Kozinski, it bears noting, has taken the opposite position from Posner, arguing that law professors are too skeptical about opinions and wrongly teach this skepticism to students).

Then comes the strange part of his argument: Posner blames law clerks (and law professors) for perpetuating the (misleading) legalistic style of judicial decisions:

The failure of law professors to come to terms in their teaching and writing with the ghostwriting of judicial opinions by law clerks is especially damaging to a realistic understanding of adjudication….Students are taught to approach judicial opinions as if every word were written by the nominal author—that is, the judge—and the effect is to imbue them with a legalistic outlook, an effect reinforced by their youth….When they become law clerks it is natural for them to write opinions designed to provide legalistic justifications for their judges’ votes. They thus contribute to the mystification of the next student generation. (221).

Posner thus lays out a causal chain for the contemporary production of legalistic judicial opinions: law professors teach unrealistic legalism to students; students then become law clerks who write misleadingly legalistic judicial opinions; and the cycle continues.

Where are the judges—no potted plants—in all this? Judges are either deluded in believing in legalism as well, or deceptively pretending to believe in it, Posner suggests. Either way, the legalistic style of judicial decisions suits judges, so they sign-off on the work product of their law clerks.

If Posner’s claim is that the legal culture is indoctrinated into and perpetuates a particular style of writing judicial opinions, then his point is uncontroversial. But his argument, instead, appears to place blame (responsibility) on law professors and law clerks for perpetuating false legalism in judicial opinions. That argument is, well, weird. The law clerk who drafts opinions mainly in the style of policy arguments would be fired by the judge for incompetence; the professor who teaches students to do this should be fired by the law school for incompetence.

Let’s set that aside, however, and take up the more essential underlying assumption of Posner’s argument—the assumption that the legalistic style of written opinions is misleading. According to his account, everyone engaged in this process--law professors, law clerks, judges--is either blind or deceptive, collectively producing a false front about judicial opinions.

John Dewey wrote a famous essay in 1924 that distinguished two ways of understanding judicial opinions: as an account of how the decision was actually made; or as the best legal argument the judge can come up with to justify the decision and to provide guidance for future cases. Dewey argued that opinions are the latter. This has been widely understood ever since (with judges and professors repeating this point many times).

Understood in these terms, there is nothing misleading about writing judicial opinions in a style that marshals and presents the strongest legal argument in support of the decision—because that’s precisely what the opinion purports to be. An opinion serves the functions of providing legal justifications for the decision and providing legal guidance for future cases.

The fundamental problem with Posner’s generally informative book on judging is that, in the name of realism, he carries on the same old battle against foolish legal formalism (a false battle all along). His book, much like Jerome Frank’s Law and the Modern Mind, is written with delightful wit and irreverence, aiming to be scandalous and provocative.

But that was then and this is now. Now many people, inside and outside of law, think judging is mainly politics. The scandal has drained away from pointing out, as Posner repeatedly does, that legalistic judicial opinions are misleading. In this excessively skeptical atmosphere, his book would have been more edifying had he more fully elaborated on the many ways in which judicial decisions are determined by the law (as he acknowledges, though tends to deemphasize).

It’s time to move on.

Posted 11:19 AM by Brian Tamanaha [link]