Tuesday, March 30, 2010

Posner's pragmatism, continued, and clinical legal education

The point I made yesterday about the difficulty of making pragmatist calculations is not news to Judge Posner, as I realized when I reached the final pages of How Judges Think. There he says that "pragmatism is not a panacea for what troubles American law, or an antidote to political judging. It tells judges to have regard for the consequences of their doctrines and decisions, but it cannot tell them how to weight those consequences. The weighting is the result of a complicated interaction -- mysterious, personal to every judge -- of modes of reasoning (analysis, intuition, emotion, common sense, judgment), political and ideological inclinations, personality traits, other personal characteristics, personal and professional experiences, and the constraints implicit in the rules of the judicial 'game.'" (376)

But this picture of judging as a very "complicated interaction" seems somewhat inconsistent with other observations I mentioned yesterday. If, as Posner says, "politically like-minded judges usually vote the same way despite their different judicial philosophies" (346), then the interaction seems less complicated, more dominated by the single factor of politics, than his concluding statement suggested.

So, too, with Posner's assertion that the motivation for adopting originalism is political (342). (Elsewhere he writes that "[t]oday's exaltation of legalism is to a significant extent a reaction by politically conservative legal thinkers" to the liberal judicial activism of an earlier era. (372)) As I said yesterday, this observation seems somewhat inconsistent with the proposition that "politically like-minded judges" with different philosophies would actually exist, since the choice of philosophy ought to fit with the judge's politics. But this observation is also inconsistent with the "complicated interaction" image, since again it seems to say that the interaction -- here between politics and philosophy -- is relatively uncomplicated.

Perhaps Posner is saying that only pragmatists undertake to consider enough of the world tfor their decisionmaking process to become so multi-factored and complicated. But I don't think this is his point. I think he feels that everyone ultimately decides hard cases in the same way -- that is, with personal beliefs, attitudes and psychology playing a major role. It would certainly be remarkably if a judicial philosophy had the power to overcome all the other factors driving human decisionmaking.

Ultimately, I think Posner must -- or should -- say that the choice of judicial philosophy is a product of this full "complicated interaction" rather than being directly dictated by politics alone. After all, if this were not so, what would explain the choice of some people to become pragmatists? Perhaps the pragmatists could be the people with no strong ideological convictions, but I don't think Posner sees himself that way. (Witness his comparing himself with Judge Easterbrook, a "strongly originalist" (and, it's my impression, politically conservative) colleague of his on the Seventh Circuit, in the course of suggesting that judges of similar politics but different judicial philosophies still tend to vote alike.) Is pragmatism, then, a philosophy whose adherents choose it for reasons other than politics? Is pragmatism the home of those who, whether conservative or liberal, are uncomfortable with orthodoxy? If these suggestions are correct, what they say is that, indeed, the choice of pragmatism (and presumably the choice of other philosophies as well) is the result of the full complicated human decisionmaking process that Posner has described.

And that leads to a perhaps surprising point. Posner says in the book's final paragraph that "Law is taught as if judges were second-class professors, professors manque -- legal analysts lacking the specialized knowledge of the law professor. The motivations and constraints operating on judges, and the judicial mentality that results, are ignored, as if judges were computers rather than limited human intellects navigating seas of uncertainty. As a result students are not taught how to present a case to a judge in a way that will strike a responsive chord." (377) This point is, in miniature, the rationale for clinical legal education, and it is good to welcome Judge Posner as an advocate of practice-minded, skills education.

Sunday, March 28, 2010

Posner's pragmatism

Another note on Posner's How Judges Think:

Posner demonstrates persuasively that pragmatism, his favored judicial philosophy, can offer a refreshing alternative to some partisan contests over the meaning of the constitution. Thus he says of a Supreme Court decision permitting school vouchers -- which might be good or bad -- that the potential benefeits of vouchers "could not be realized if voucher systems were declared unconstitutional. Such a declaration would strangle a worthwhile social experiment in its cradle." (312) He acknowledges at once that "if vouchers spread like wildfire, the Court might have difficulty putting out the flames" -- a pragmatic reason not to permit the experiment in the first place -- but still his point that pragmatism favors experimentation makes sense. It's true that every decision is an experiment (for example, we experiment with having vouchers if they're permitted, and we experiment with not having them if they're forbidden) -- but sometimes, as with vouchers, it's clear enough which alternative we have fewer data on, and that's the alternative that the pragmatic-experimentation rationale would favor.

Posner is also right, though the point can be traced back to Bickel (whom Posner criticizes), that there are some doctrinal paths that will just stir up trouble, and should be avoided for that reason. Posner approves a decision permitting a Ten Commandments monument on the Texas state capitol grounds because the result of prohibiting this monument might have been "an ACLU-led campaign to purge the entire public space of the United States of displays of the Ten Commandments, ubiquitous as they are. It is hard to imagine not only a more divisive but also a more doctrinaire and even absurd project, faintly echoing as it would the campaigns of Mexico, Republic Spain, and the Soviet Union in the 1930s against the churches of those countires, not to mention the destruction of religious images by the Iconoclasts of eighth-century Byzantium." (321-22) My sympathies are much more with the ACLU than Posner's, but I think he is right that this is a line of historical precedents one should avoid joining.

The trouble is that the lessons of pragmatism often, perhaps usually, are more obscure than these instances of relative clarity might suggest. Consider Posner's analysis of Kelo, the Supreme Court's decision affirming state power to use eminent domain to seize privately owned land and transfer it to another private owner for purposes of redeveloping an area. Posner says that eminent domain is essentially an arbitrary tax, in which the public takes property for its market value but doesn't pay for -- in effect, taxes at a rate of 100% -- the additional "subjective" value that the property had for its owner. (My house is worth X on the market; but I like living in my particular house, so it's worth X + Y to me -- yet eminent domain pays me only X when it takes the house.)

"The only justification for this form of taxation," he writes, "is the existence of holdout problems," which arise when an individual property owner can hold out for a price far beyond the normal market value of the property because the would-be acquirer has to get that particular piece of property, for instance to assemble a large piece of land for a major construction project. (315) Posner comments that the Kelo court "mentions the holdout issue only in passing" (316).

But, Posner says, "[p]aradoxically, the strong adverse public and legislative reactions to the Kelo decision are evidence of its pragmatic soundness" -- because the effect of the decision was to return the issue of eminent domain to the political process, which has proved quite able to address it. (319) Posner has more to say about the pragmatics of Kelo, but this last point would seem to mean that even if a holdout analysis had been done and had counseled against permitting eminent domain in this case, a decision to allow eminent domain could still, pragmatically, have been the right one. The pragmatics of economics and the pragmatics of democratic process may point in opposite directions, and I'm not sure what pragmatic calculus could choose between them.

Moreover, in many situations it must be unclear what a pragmatic analysis really calls for. Posner himself has analyzed a host of issues through the framework of economic rationality, but that framework has come under sharp attack with the rise of study of the shape and limits of human cognition (a line of study Posner has by no means resisted). More concretely, consider his critique of Justice Breyer's rationale for approving limits on campaign contributions under the First Amendment. Posner writes that Breyer's "fear is that without limitations on individual campaign contributions, candidates will confine their fund-raising to the handful of fat cats, and the ordinary people will become alienated from the political process because they will assume that policy is shaped by the interests of the rich and that the people's voice is not heard." (331) In the next paragraph he responds: "No evidence for this implausible speculation is offered." He goes on to offer some arguments, though not evidence, against it.

To my mind, Breyer's speculation doesn't seem implausible at all, but that's not my main point here. Rather, my concern is that demonstrating that Breyer is either right or wrong seems likely to be far beyond the capacities of our current social science. Are ordinary people "alienated from the political process"? Will they become more alienated if rich people's political spending becomes even greater than it already is? Even if we succeed somehow in measuring alienation, how will we tell which of ten thousand political developments that preceded that increase contributed, to what degree, to its occurring? In short, the consideration Breyer has raised seems to me to be one a pragmatist should consider -- but I don't see how it can be measured.

I doubt that Judge Posner would take issue with the points I've just made about the indeterminacy of pragmatist analysis. He writes a little later in the book that his "impression is that politically like-minded judges usually vote the same way despite their different judicial philosophies.... [J]udicial philosophies" -- such as pragmatism or originalism -- "have little causal efficacy. They do not weaken the force of political preferences. They supply not 'actionable' reasons but rationalizations for actions taken on other grounds." (346) If the calculations pragmatism calls for are really infeasible, then it does follow that there will be plenty of room within a pragmatist analysis for political predispositions to creep in.

And yet Posner himself seems of two minds on this. A few pages earlier he writes that "originalism and its sibling, textualism, like pragmatism ... is [sic] not intrinsically political, although its motivation I take to be political, in the sense that the outcomes it is likely to produce will on the whole conform to the political preferences of the theorist and that otherwise he would not have adopted it." (342) This observation is consistent with Posner's view that judicial philosophies "do not weaken the force of political preferences." But it may be inconsistent with his impression that there actually exist judges with similar politics but different philosophies -- the judges who Posner believes cast their votes in concrete cases based on their politics rather than their philosophies. Some such judges undoubtedly do exist, and Posner names some examples; but on the argument I'm making, they should not be common, because if judges choose the philosophies that fit their politics, then the fact that judges have chosen different philosophies is a sign that they have different politics.

I am sure that a textualist is not automatically a political conservative; what politics textualism -- or any other interpretative theory -- fits with will depend on the nature of the issues the judge and his or her country face. In South Africa under apartheid, for instance, a good deal of anti-apartheid mileage could potentially be gotten out of an indifference to legislative history (which might have revealed the oppressive intentions behind particular pieces of legislation in a way that could not be ignored). Here in the United States today, a similar indifference to legislative history may best serve conservative politics.

But if judicial philosophies are driven by politics, then we are unlikely actually to find many of the judges of similar politics but different philosophies whose voting behavior Posner thinks about. And because that is so, it may also be difficult to test empirically whether judicial philosophy is driven by politics, or (conceivably) vice versa, or (more likely) whether some deeper set of convictions or personal characteristics jointly drive them both.

Sunday, March 14, 2010

The impact of intuition on cognition -- an illustration from Posner's "How Judges Think"

Another note from reading "How Judges Think":

Discussing whether federal district judges have incentives to shape their behavior so as to win promotion (to the Court of Appeals), Posner explains that the fact that "only 6 percent of district judges are promoted exaggerates the odds against promotion" because many district judges have no "realistic prospects of being promoted." "Suppose," he writes, "though this is just a guess, that only 20 percent of district judges had a chance of being promoted. Then each of the judges in that pool would have a one-third chance (.20 [divided by] .06 = .33) of promotion, and those might be short enough odds to induce a judge to do whatever he could to rise within the pool." (142)

This passage exemplifies Posner's pragmatic, one might at times say cynical, appraisal of human and judicial nature -- a perspective that is enlightening even if not always persuasive. But this particular passage also contains, surprisingly, a mathematical error. 0.20 divided by 0.06 does not equal 0.33; in fact it equals 3.33. (Readers whose recollection of decimals is fading can test this by adding 0.06 + 0.06 + 0.06; the result is 0.18, and the remaining 0.02 is exactly one more third of 0.06.) Since the highest chance anything can have of happening is 1 (or 100 %), clearly distict judges do not have three times as high a chance as that of becoming appellate judges. Probably that anomaly led Judge Posner to the intuitive conclusion that the answer to the calculation was 0.33, since that number is plausible.

But as it happens, that number is only accidentally plausible. The correct answer can, I believe, be approached this way. If 6 promotions are available each year, and they will all go to a group of 20 judges, what is the chance that any one of those judges will get a promotion? The answer to that question is the number of promotions divided by the number of candidates, or 6/20. (This calculation is the opposite of the one Posner did, which was to divide 20 by 6.) 6/20 = 0.3, which is quite close to the 0.33 figure that Posner mistakenly arrived at.

This is an interesting illustration of the power of intuition to undercut logical reasoning, a frequent focus of those who study human cognition.

It's also an illustration of an older proposition: even Jove nods.

Sunday, March 7, 2010

"How Judges Think" and economic rationality

In his provocative book, How Judges Think (2008), Judge Richard A. Posner highlights the economically remarkable fact that federal judges who take senior status -- under which they continue to judge, though with a reduced load, while still earning full salary -- are in effect "working for nothing" (61) , since they could also have retired completely from judging and still kept the same full salary. (A nice deal.)

He hastens to remind us that the senior status judges' choice "is consistent with rational behavior." (61 n.7) So it is, if we posit, as Posner does, that the judges have "a taste for being a good judge." (60) If judges have this taste, then satisfying it delivers value to them; hence their decision to work for nothing is actually a decision to work for something, namely the satisfaction of this taste, a reward they could not get if they retired from judging altogether.

This argument is perfectly coherent. But it has a striking feature, which no doubt is old news to critics of law & economics: it makes the economic theory of rational behavior unfalsifiable. Since every choice can be described as satisfying the chooser's taste for making that choice, every choice must satisfy the criterion of rationality that it advance the chooser's ends. If that criterion is too loose, and we insist instead that the choice must advance some end more abstract than the end of making that very choice, we can certainly find cases where people's choices are ill-calculated to achieve their own more abstract ends (and finding and explaining such cases of unsuccessful self-interested behavior is an important field of current study, in particular in "behavioral economics"). But we still cannot falsify the proposition that all behavior aims to be self-interested, because even the most altruistic act can be described as satisfying the actor's taste for altruism.

That's okay, in a sense. It doesn't necessarily matter whether people act altruistically out of a sense of obligation or out of desire for the taste of altruism. In fact, the "taste" may even have a neurochemical basis; at least, that's what the public radio fundraiser said the other day, explaining that acts of giving result in the release of a pleasurable hormone in the giver's brain. So if we think that altruistic acts are desirable (and whether the reason we think that is hormonal or philosophical), we simply need to encourage people to develop the taste and to structure social situations in which that taste can be satisfied.

Still, if we are interested in understanding the sources of altruistic behavior, the "taste" theory is essentially opaque. It is not self-evident that the taste for altruistic behavior is the same kind of taste, with the same kind of chemical or cognitive or emotional basis, as the taste for economic gain. It may not be easy to imagine a situation in which someone with a taste for the pleasure of altruism would act differently than someone who recognized the moral obligation to be altruistic, but these two people may not be the same. We may before too long be able to trace the pathways of thought and feeling with enough precision to see whether acts experienced as flowing from moral obligation are distinguishable, in terms of mental processes, from acts experienced as efforts to satisfy self-interest. Many of us have the intuition that some people really are less selfish than others; neurobiology may yet prove this intuition right.