Judge Posner's Simple Law

32 Pages Posted: 1 Nov 2014 Last revised: 15 Sep 2015

See all articles by Mitchell N. Berman

Mitchell N. Berman

University of Pennsylvania Law School

Date Written: 2015

Abstract

The world is complex, Richard Posner observes in his most recent book, Reflections on Judging. It follows that, to resolve real-world disputes sensibly, judges must be astute students of the world’s complexity. The problem, he says, is that, thanks to disposition, training, and professional incentives, they aren’t. Worse than that, the legal system generates its own complexity precisely to enable judges “to avoid rather than meet and overcome the challenge of complexity” that the world delivers. Reflections concerns how judges needlessly complexify inherently simple law, and how this complexification can be corrected. Posner’s diagnoses and prescriptions range widely — from the Bluebook to the law school curriculum. But the principal culprit, in Reflections as in many of Posner’s previous writings, is legal formalism and, in particular, the textualist and originalist approaches to legal interpretation associated with Justice Antonin Scalia. Indeed, the book’s centerpiece is a substantially expanded version of a scathing, previously published review of Scalia’s book, co-authored with Bryan Garner, Reading Law: The Interpretation of Legal Texts. Accordingly, this article, a review of Reflections produced for the Michigan Law Review’s annual book review issue, focuses on the debate between Posner and Scalia. After offering a scorecard of blows landed and missed, I argue that the debate reveals two ironies. First, Posner’s criticisms often misfire precisely because he fails to appreciate the irreducible complexity of law. Despite common rhetoric, the central thesis of contemporary originalism is not about the activity denominated “interpretation.” Rather, 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. What those texts say is, for that reason, what the law is. This is not true of all originalists, but it is true of the dominant (Scalian) branch. It is a picture of law of breathtaking simplicity. In short, the canard that law is simple is vastly more congenial to originalism than to whatever nonoriginalist picture of law Posner might have inchoately in mind. Second, if this orthodox originalist conception of law is mistaken, we are far from agreed on an alternative account. If we are ever to understand the underpinnings of legal precepts — how the normative entities that are legal powers, duties, rights, and permissions, correspond to or are produced by such facts as the enactment of legal texts, the issuance of judicial opinions, and the dispositions and behaviors of legal actors — that understanding will come, almost certainly, from advances in legal theory. Yet Posner is disdainful of legal and constitutional theory — of the field, and not only of its current practitioners. That is unfortunate. What are the determinants of legal content is a theoretical question of great difficulty. Posner should not be so dismissive of the field that tries to resolve it.

Keywords: Courts, jurisprudence, constitutional law, complexity, constitutional theory, judicial role, originalism, textualism, judging, determinants of legal content, legal realism, pragmatism, Antonin Scalia, Reading Law: Interpretation of Legal Texts, Richard Posner, Reflections on Judging

Suggested Citation

Berman, Mitchell N., Judge Posner's Simple Law (2015). Michigan Law Review, Vol. 113, P. 777, 2015; U of Penn Law School, Public Law Research Paper No. 14-36. Available at SSRN: https://ssrn.com/abstract=2516964

Mitchell N. Berman (Contact Author)

University of Pennsylvania Law School ( email )

3501 Sansom Street
Philadelphia, PA 19104
United States

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