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.

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