Reflections on judging /

IN A FAMOUS PASSAGE in Marbury v. Madison, the 1803 case establishing the power of judicial review, Chief Justice John Marshall observed that the question of whether an act inconsistent with the Constitution could stand "is a question deeply interesting to the United States, but, happily, not of an intricacy proportioned to its interest." Two hundred and ten years later, another eminent jurist has turned to questions whose intricacy matches - or exceeds - their interest. "Reflections on Judging" by Richard A. Posner, a judge on the United States Court of Appeals for the Seventh Circuit, is about what judges should do when confronted with complexity. Like the rest of us, judges face an increasingly bewildering world, marked by daily advances in such areas as social media, the sciences and globalization. Unlike the rest of us, judges must make decisions that enforce their understanding - or misunderstanding - of that complexity onto millions. In its organization, this is a simple book. Posner recognizes that awesome charge: he decries one common response to complexity, and endorses another. At the outset, Posner distinguishes between two kinds of complexity: external and internal. Law regulates external complexity but does not create it - think of sexting (in a First Amendment case), the science of the human genome (in a patent case) or the nature of the Nazarite vow (in a religious liberties case). In contrast, law creates internal complexity - think of intricate rules of interpretation, bloated conventions of citation or vague and poorly written opinions. While the judiciary cannot do much about the former kind of complexity, it can - and in Posner's view, must - address the latter. Both forms of complexity, of course, have always existed. Yet Posner believes the rise of external complexity has triggered the rise of internal complexity. Judges, he fears, "escape from complexity into complexity." Posner lambastes this move. Significantly, he takes aim at formalism - the view that legal rules stand above and apart from politics - particularly as embodied in "Reading Law," a recent book by Justice Antonin Scalia and the legal lexicographer Bryan Garner. At face value, one might think formalism would clarify rather than complicate, given that it relies on rules that must be applied without regard to the judge's personal views. Yet after noting that Scalia and Garner offer 57 varieties of interpretation, many of which conflict, Posner attacks their formalism as byzantine obfuscation. More surprisingly, Posner spends significant firepower assailing "The Bluebook: A Uniform System of Citation." This compendium (The Chicago Manual of Style for lawyers) might seem an unworthy target. Yet he is excoriating not just the Bluebook, but also the substitution of style over substance it represents. When created in 1926, supposedly by the great appellate judge Henry Friendly, the manual was 26 pages. A recent edition spans 511 pages. Posner appears to believe that following the Bluebook is about as bad as rearranging deck chairs on the Titanic - and by reverse order of manufacture, no less. He casts the Bluebook as a neurotic reaction to external complexity; if you cannot control what is important, you make important what you can control. Posner notes that Friendly himself recommended that later editions be treated as the Greeks treated their unwanted progeny. Posner attacks the formalism of judicial opinions with equal enthusiasm, saying that opinions have grown needlessly complex. He decries judges who delegate opinion writing to their clerks, assuming an editorial rather than an authorial role. This widespread practice, he astutely argues, increases the formalism of the opinions themselves, given that the clerks will be more confident applying three-part tests on behalf of their bosses than drawing on their limited legal experience. Posner also laments the use of jargon by both judges and clerks: "Like other professionals, judges don't want to be transparent to the laity. They want their calling to be a mystery, and one way to make it so is to complexify what they do." To make his point, he reproduces an entire opinion from an appellate court and then rewrites it, cheerfully observing: "The court's opinion is 3,237 words long; my version is 602 words long." In his introduction, Posner states that judges rarely "offer pointers to other judges" and hopes "this aspect of the book doesn't strike my judge readers as an impertinence." Yet his willingness to speak to his readers - judges or otherwise - as a jurist with three decades of experience is a strength of this book. "Reflections on Judging" is spangled with legal cases in which Posner, faced with disorder, triumphantly cuts through the noise. A lawyer asserting trademark infringement gave a convoluted description of the resemblance between the logos on two caps. Posner asked if he had any of the caps with him; the lawyer did, and won the case (though he did not know it) then and there. Another case involved the meaning of "harboring." To understand how it was used in common parlance, Posner looked at the number of Google hits for "harboring fugitives" (50,800) versus "harboring flood victims" (zero), from which he concluded that in general usage, "harboring" meant safeguarding individuals from detection by authorities rather than simply housing them. Posner has been criticized for using Google, but he remains "unrepentant." A fan of visual aids in general, he discusses a case in which the issue was whether certain garb was work clothing or safety equipment. He includes in the book (as he did in his opinion) a photograph of a former clerk modeling the outfit. Beneath the great seal of the United States, Posner's chambers should have a crest of a mongoose, encircled with Kipling's dictum: "Run and Find Out." Of course, such a pragmatic approach can engender controversy, as one line of this book has already done. Posner writes, "I plead guilty to having written the majority opinion (affirmed by the Supreme Court) upholding Indiana's requirement that prospective voters prove their identity with a photo ID - a type of law now widely regarded as a means of voter suppression rather than of fraud prevention." This line has been interpreted as a recantation, yet it's less an admission of error than an admission of uncertainty. This is consistent with his general approach: to acknowledge complexity, vacuum up as many facts as possible and then do his best. Frankly, if there is a problem with this method, it's that Posner's best is significantly above the mean. This issue surfaces in the book when he wonders why a particular Supreme Court justice says she is too busy to write all her opinions, given that he assumes a draft opinion takes about on average "four hours" to write. This is not to criticize the justice, as Posner hastens to add, but it does speak to the point that Posner's productivity is unique, and it's just one of his signal qualities. Because of the nature of my closing lines, I should say that I have met Posner once at a conference, and that he gave me a blurb for one of my books. I otherwise do not know him. If it is fortunate, a legal generation has a Tenth Justice. I invoke the phrase not as it is sometimes used, to denominate the solicitor general, but rather as it was used to refer to Learned Hand, the famed appellate judge who never warmed a seat on the Supreme Court. By dint of relentless merit, these individuals earn legal authority akin to that wielded by the Nine. In Richard A. Posner, our generation has its Learned Hand, its Henry Friendly. In complex times, we can take comfort in the simple fact of his existence. The book is spangled with cases in which Judge Posner cuts through the noise. KENJI YOSHINO is Chief Justice Earl Warren professor of constitutional law at New York University School of Law. His next book, on the same-sex marriage litigation over California's Proposition 8, will be published in 2014.

Posner (circuit judge, U.S. Court of Appeals; How Judges Think) uses his judicial experience as a platform for an in-depth discussion of the challenges facing the federal judiciary, chief among them the growing complexity of federal cases. He examines the impact of complexity as it pertains to the subject matter of cases being heard and as it exists in courts' own systems, habits, and traditions. He analyzes the difference between legal formalism (adherence to established principles for interpretation of laws and the Constitution) and legal realism (fact- and context-based jurisprudence) and advocates for a wider application of the latter. There is an excellent chapter in which the author indicts appellate opinion writing as needlessly verbose, esoteric, and rich in "gratuitous internal complexity." He proffers solutions to bad writing with rigorous yet practical guidelines for improvement, which, though directed toward appellate opinion writers, might be applied in all legal writing. Posner is a precise, erudite writer with a strong point of view enriched by specific examples accumulated over the course of three decades of professional experience and observation. VERDICT Posner's insights will resonate with jurists and those who practice before them. His book is highly recommended for those in the legal profession and other court watchers.-Joan Pedzich, formerly with Harris Beach PLLC, Pittsford, NY (c) Copyright 2013. Library Journals LLC, a wholly owned subsidiary of Media Source, Inc. No redistribution permitted.