Divergent Paths: The Academy and The Judiciary
by Richard A. Posner
The courts, particularly at the federal level, suffer from (among other deficiencies) a “stale judicial culture” (p. xii), according to Richard Posner, judge on the U.S. Seventh Circuit Court of Appeals since 1981 and former University of Chicago law professor. In this provocative and illuminating new book, Posner submits that the federal judiciary ought to be able to look to the legal academy for useful guidance on remedying or ameliorating the courts’ weaknesses, but that law professors on the whole have done a disappointing job in their teaching, scholarship, and judicial education of bridging the gulf between these two branches of the legal profession. His goal in this volume is to document and explain this separation and suggest strategies for reducing it.
Focusing mainly on federal appellate courts and elite law school faculties, Part One of Divergent Paths provides an extensive “account of where the judiciary needs help and in Part Two [provides] an effort at constructive suggestions for reforms of legal education and scholarship that would give the judiciary some of the help it needs” (p. 6). Many of the author’s observations are in-depth expansions of ideas earlier expressed by Judge Posner in How Judges Think (2008) and Reflections on Judging (2013), but with many valuable insights added.
Among the most stimulating of these insights is that members of the legal academy today are decreasingly drawn from professional backgrounds involving substantial legal practice experience. Moreover, law professors increasingly receive their rewards (both internal and external) by creating dense, elegant, theoretical magnum opuses meant to impress their fellow specialized academic colleagues but which prove to be of little interest to judges who must imperfectly but pragmatically resolve real cases and controversies in real time. The judiciary, per Judge Posner, would pay more attention to published scholarship that was heavier on feasible, practical approaches to factual problems — that is, on how to apply good judgment in difficult situations — and less obsessed with demonstrating cerebral ingenuity and intellectual abstraction that showcases the erudition of an article’s author but leaves the judicial reader unassisted.
Posner’s approach to judging is not formalistic, but instead pragmatic/realistic, under which (to quote Justice Holmes), “The life of the law has not been logic; it has been experience.” In other words, Posner wants to reach judicial decisions that are sensible under the circumstances, taking into account but not become strangled by existing precedents. He proposes in detail ways in which the legal academy might best help this justice-enhancing effort through more relevant and comprehensible scholarship, a modified law school curriculum that inculcates future practitioners (and members of the judiciary) with a keener understanding of judges and judging, and the sponsorship of continuing judicial education offerings that focus specifically on the judicial role and process rather than legal doctrine.
Divergent Paths is a scholarly (i.e., heavily footnoted), direct, and readable discussion that should be taken seriously by judges, legal academicians, law students, and especially the legal practitioners who make the system actually work for society. Each of these elements have a vital stake in optimizing the operation of the law in daily practice. As Judge Posner emphasizes with candor and color, opportunities for more productive synergies abound. The 432-page book is published by Harvard University Press (2016).
Marshall B. Kapp is the director of the Florida State University Center for Innovative Collaboration in Medicine and Law.