Divergent paths : the academy and the judiciary /

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Bibliographic Details
Author / Creator:Posner, Richard A., author.
Imprint:Cambridge, Mass. : Harvard University Press, ©2016.
Description:xiv, 414 pages ; 22 cm
Language:English
Subject:Judicial process -- United States.
Judges -- Training of -- United States.
Law -- Study and teaching -- United States.
Judges -- Training of.
Judicial process.
Law -- Study and teaching.
United States.
Format: Print Book
URL for this record:http://pi.lib.uchicago.edu/1001/cat/bib/10423759
Hidden Bibliographic Details
ISBN:9780674286030 (alk. paper)
0674286030 (alk. paper)
Notes:Includes bibliographical references and index.
Review by Choice Review

An esteemed Federal Court of Appeals judge and a senior lecturer at the University of Chicago Law School, Posner writes of two types of law-related professions in the US: the judiciary and the academy. The first half of the book covers issues the judiciary faces, from judicial interpretation to staff management. The second half covers the problems the judiciary faces as a result of law schools focusing almost solely on interdisciplinary studies or an extremely narrow focus on specific types of law. Posner provides suggestions for the legal academy to assist the judiciary with its management and educational deficiencies. The author tends to wander throughout the text, from over-explaining some points to providing too many, or no, examples of the issues. Overall, this is a good read with a focus on how to better prepare law students for practice to meet the needs of the judiciary. Legal academics, and academics in general, will benefit from learning about the educational gaps they could fill for judges. Summing Up: Recommended. Graduate students, faculty, professionals. --Jamie Marie Keller-Aschenbach, Florida Coastal School of Law

Copyright American Library Association, used with permission.
Review by New York Times Review

IF RICHARD POSNER did not exist, who would dare invent him? The most-cited legal scholar of all time, who is arguably America's greatest living judge; a man who publishes a book a year while writing all his own judicial opinions; an icy rationalist who once confessed to unrequited love for his cat It's all a bit too much to believe. Arthur Conan Doyle's Sherlock Holmes and Gene Roddenberry's Mr. Spock are probably the closest anyone has come. Fortunately, Posner does exist. A judge on the United States Court of Appeals for the Seventh Circuit since 1981, he remains a senior lecturer at the University of Chicago Law School and from these dual positions continues to produce an astounding amount of work. He made his reputation as a scholar by pioneering the economic analysis of law in the 1970s and since then has ranged widely, covering topics like the relationship between law and literature, the regulation of sex, the 2000 election and antiterrorism. Recently he has turned his attention to the federal judiciary and written two books, "How Judges Think" and "Reflections on Judging." His latest, "Divergent Paths," continues that trend, though its aim is less illumination than critique and reform. The book has two parts. The first, and longer, identifies problems facing the modern federal judiciary; the second offers suggestions for how law schools might alleviate them. Both display Posner's characteristic clear-headed insights. "Divergent Paths" is a valuable contribution to debates over the future of federal courts and law schools alike. It is not perfect. The list of judicial problems and possible academic solutions is long enough to be overwhelming: It includes 55 problems and 48 solutions. And even those numbers understate things, since some problems and solutions encompass multiple sub-issues, many of which will be intelligible only to those well versed in federal law. And some of the criticisms seem overstated. Legal analysis often features multifactor tests, "lists of considerations for the judge to weigh and compare," in deciding some issue, like the amount of damages to award in a patent infringement case. Posner repeatedly derides such tests for failing to lead judges to specific outcomes. However, he thinks that no legal rules can do this in the important and interesting cases, so that judges must often follow hunches or moral intuition. In such circumstances, it would seem, a multifactor test would improve matters: It would structure intuition by telling judges which factors to consider and which to ignore. That should produce better and more uniform decisions. Similarly, Posner's analysis of diversity among judges is undeniably correct on one point - judges, and particularly Supreme Court justices, should have a diversity of professional experience, including work in the executive or legislative branches of government. But he is unduly dismissive of racial and gender diversity as a useful element in providing different perspectives. It may be true, as he notes, that Clarence Thomas and Antonin Scalia tend to vote similarly on racial questions, as do Ruth Bader Ginsburg and Stephen Breyer on gender issues. But the opinions these judges write are different (something Posner, who understands judicial opinions as rhetorical performances, should care about). What is more, it may well be that Breyer would vote differently in some gender cases were Ginsburg and the other women not on the court. Shifting to the academy, Posner is critical of most legal scholarship. He is correct that theoretical scholarship, which explores foundational questions rather than closely analyzing specific legal rules, is often too abstruse. Doctrinal work, on the other hand, which does examine specific rules, may be of limited value because legal doctrine does not decide the most significant cases. Judges, Posner claims, must frequently simply guess as to what the sensible answer to a legal question is. BUT THAT'S NOT quite all judges do. In constitutional cases, where they are asked to invalidate some government act, they must also decide how much weight to give to the government's view. For instance, the president may claim - backed by a report from the Army - that some action is necessary for national security. Even if judges would not have adopted the policy themselves, should they defer to this claim? During World War II, the government forced over 100,000 people of Japanese descent, a majority of them American citizens, to leave the West Coast, eventually confining them in camps. Fred Korematsu challenged the order that drove him from his home. The government defended its policy on the grounds of military necessity, submitting a report from the commanding general, and the Supreme Court accepted that claim. The Korematsu decision is now commonly considered a bad one, though some people - Posner included - have defended it. Posner has stated that "Korematsu was correctly decided" and that judges might reasonably think "if the military in the middle of a world war says we have to do this, then we're going to defer." They might - but they might also learn from scholarship. Such scholarship suggests that the executive branch tends to overreact in times of crisis, and that a Congress controlled by the president's party may prove an inadequate check. In the Korematsu case specifically, historical research, notably some conducted by the law professor Peter Irons, shows that the government was aware of inaccuracies in the military report it submitted to the Supreme Court, suggesting that it was not fully candid in presenting its argument. In Hamdi v. Rumsfeld, a 2004 case about the detention of an American terrorism suspect, both these points were made to the Supreme Court in an amicus brief submitted by Fred Korematsu and written by the law professor Geoffrey Stone. This time, the court treated the president's claims far more skeptically. Both Justice O'Connor's plurality opinion and Justice Souter's concurrence seemed keenly aware of the scholarly arguments. Enough criticism. Posner is, as always, uniformly sensible and frequently brilliant. With such a long list of problems and solutions, everyone will find something with which to disagree. But every reader should find something to agree with as well, and on some points there should be consensus. Our fetishization of the adversary system does lead to injustice and inefficiencies. Law schools should focus more on teaching writing - not some Procrustean monstrosity called "legal writing" but the ordinary techniques of constructing a sentence and telling a story. Classes on civil procedure and evidence should be taught more clinically - that is, through actual cases. Academics should write shorter and simpler articles. They should conduct scientifically grounded research into the role of ideological and other factors in judging. They should collaborate with judges. In the end, possibly the book's greatest weakness is that it asks so much of judges, academics and law students. Everyone, it seems, should work much harder - law students should fill in the gaps in their undergraduate education via MOOCs; judges should take continuing education classes at law schools; academics should learn how to conduct empirical research. Only a Richard Posner could do all of these things - but if we were all Posners, there would be no need for this book. KERMIT ROOSEVELT is a professor of constitutional law at the University of Pennsylvania Law School. His most recent book, "Allegiance," is a novel about the Supreme Court in World War II.

Copyright (c) The New York Times Company [January 31, 2016]
Review by Publisher's Weekly Review

Federal appellate judge Posner (Reflections on Judging) analyzes problems in the federal judiciary and ponders how a shift in the focus of law-schools could address them. The prolific and outspoken jurist pulls back the curtain on how his colleagues behave, noting the extent to which outcomes can be dictated by what he dubs judges' priors: "the impulses, dispositions, attitudes, beliefs, and so on that they bring to a case." Posner recites a litany of ways in which federal appellate judges fall short, including a reliance on inexperienced law clerks to draft opinions and various barriers to obtaining the "sophisticated scientific, technical, and financial information" they need to reach the right result. He believes that a different approach by law schools might make a difference, with academics producing scholarship that would be more useful to judges and schools improving judicial education. Given his equally harsh assessment of the state of the academy, which he believes is now dominated by interdisciplinary approaches at the expense of tradition, readers may have a hard time feeling optimistic about reforms. Posner's insights would be more useful had he followed some of his own advice and used plain language, and his points could have been made more efficiently. (Jan.) © Copyright PWxyz, LLC. All rights reserved.

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