Writing in 1993, Anthony Kronman maintains in The Lost Lawyer that "[t]he conservatism of lawyers is a further feature of their professional character and belongs, along with the others I have mentioned [in particular, "prudence and public-spiritedness"], to the ensemble of dispositional attitudes that the lawyer-statesman ideal endorses." (155)
Is it a fact that lawyers are conservative? Probably there is survey research information on this question, but I'm not burdened by knowing it. My own guess would be that professions such as medicine or engineering are more conservative than law. I'd also guess that if we controlled for income we would find lawyers rather more liberal than many of their socioeconomic peers.
But even if my speciulations are correct, they wouldn't refute Kronman's belief that conservatism is a feature of lawyers' professional character. Conservatism no doubt is shaped by many forces, personal and professional. Perhaps there are many professions whose practice and norms tend to foster conservatism. Perhaps, too, those who have entered the legal profession, even if they are more liberal than those in other professions, are also more conservative than they themselves would have been had they chosen other careers.
But it seems clear that time has already somewhat dated Kronman's account. He goes on to say that the use of the case method of education in law schools, with its focus on perceiving the logic of each litigant's claims and on adopting the disinterested perspective of the judge (see 113), "tends inevitably to promote a certain skepticism regarding the power of abstract ideas and to encourage a kind of pragmatic gradualism that constitutes the core of one familiar species of legal and political conservatism." (155) But that species of conservative is now considerably less familiar (see, e.g., Sarah Palin), and in fact the past twenty years have seen the rise of a specifically legal form of conservatism that seems far from skeptical about such abstract ideas as the scope of executive power (see the Federalist Society). The kind of actual conservatism that has grown up in the law seems out of kilter with the inherent conservatism that Kronman posited.
Again, these contemporary developments do not refute Kronman's thesis, for it might be said that the rise of "abstract" conservatism among lawyers is itself a symptom of the "lost" professional virtues with which Kronman's book is concerned. But I want to offer what I hope is a more fundamental reason why this picture is unpersuasive.
It seems to me that as a statement of the ideals of the American legal profession, Kronman's particular portrayal of the lawyer-statesman somewhat misses the mark. Kronman begins his book by saying that what has been lost in the American legal profession today is "the belief that the outstanding lawyer -- the one who serves as a model for the rest -- is not simply an accomplished technician but a person of prudence or practical wisdom as well." (2) For me, that has a ring of truth to it. So do the examples Kronman cites, such as Abraham Lincoln and Earl Warren.
But here is what Kronman says the case method in law schools contributes to the development of the virtues of prudence or practical wisdom: "[W]hat the case method really robs [students] of is their faith in large ideas, and what it puts in place of this faith is a form of skepticism -- the tendency to look with suspicion on broad generalizations, to search for the qualifying exception to every abstraction, to insist on the importance of details. Students who become skeptics in this sense are likely, in time, to find complexity more congenial than simplicity, and though their skepticism may at first extend only to the usefulness of abstractions in the law, there will be a natural tendency for their doubts to grow into a generalized pragmatism that views with suspicion any political program inspired by their old faith in the power of ideas." (159)
To me, this description simply does not grasp the essence of Abraham Lincoln or Earl Warren. To be sure, Kronman is not saying that we should abandon trying to distinguish rights from wrongs, or acting on the distinction. He writes, for instance, that "[r]ecognizing the moral imperative for change, the lawyer who embraces this ideal [of the lawyer-stateman] will nevertheless prefer to move slowly and by small degrees." Again, this characterization seems to miss something crucial about Lincoln, who did not shrink from a Civil War, and Warren, whose landmark judgment in Brown v. Board of Education hypothesizes a nonexistent state of material equality between segregated white and black schools in order to say that, as a matter of sheer constitutional principle, segregation is inherently unequal and unconstitutional.
In a way what is most startling, however, is what the lawyer-statesman ideal, understood as intrinsically conservative, does not honor. John Adams and Thomas Jefferson, revolutionaries, must stand outside this ideal. I think that Kronman would say that the virtues required for revolutions are different from those required for a society that does not seek its own death and rebirth. There's force to that, but it overstates the difference between stability and change. Passionate leadership against injustice is an integral part of everyday life in the United States, and in a broad sense our stability consists in our capacity to make the values of these passionate reformers part of the ever-changing fabric of the country. And a major part of what lawyers pride themselves on is their passionate commitment to justice, even in opposition to entrenched and powerful authority.
In short, it seems to me that Kronman's valuation of the conservative lawyer-statesman misses part of what is admirable, and admired about lawyers -- their engagement in passionate calls for justice and change. My own feeling is that Lincoln embodied both in a single extraordinary heart. Perhaps few lawyers or people can accomplish such a synthesis as well as he did. But I would say that the ideal of the lawyer-statesman is not the harmonizer of others' passions, but the person who both feels passion and understands how to make his or her ideals real in a world where many others, inevitably and profoundly, see the world differently. Doing that takes prudence and practical judgment, and I think Kronman is right to identify these values and to focus on how to elicit them. But they are not all that lawyers need.
Saturday, April 10, 2010
Sunday, April 4, 2010
Kronman's account of "practical wisdom," continued -- deliberation about ends
Kronman's account of deliberation about ends focuses on those "decisions ... [that] present me with a choice between incommensurable ends -- ends so different in kind that it seems meaningless to treat the conflict between them as a problem of tradeoffs with a quantitative solution." (64) These, then, are the issues that cannot be resolved by calculation, even Herculean calculation, because there is no scale of value on which to make the calculations.
I'm not sure that this category actually exists. It may well be that no universally accepted scale of value permits me to measure the relative benefits of, say, liberty versus security. But that doesn't mean that these values are incommensurable for me. I may conclude that for me liberty is more important than security, or that this particular form of security is more important than that particular aspect of liberty. In doing so I have made the incommensurable commensurable, at least for me.
Moreover, Kronman himself ultimately seems to say there is a criterion for making choices among incommensurable values. "The mark of a wise judgment in the personal sphere is its tendency to promote the condition of integrity." (97) But if that is so, then "promotion of integrity" is the scale on which otherwise incommensurable values can all be rated. Not only can incommensurable goods be rated on this scale, but they should be -- assuming that wisdom is what we seek.
But if the subjective experience of true incommensurability is rare, still it may exist; I may not be able to say that liberty is or is not more important than security to me, and so I may be hopelessly uncertain about how to choose between them. So how should I deliberate about them, either in an effort to find commensurability after all or in an effort to make the choice I must make despite not finding any scale of judgment to rely upon?
Kronman answers that "part of what one is attempting to anticipate in imagination are the causal consequences of the various choices one might make." (69) So if I am considering, say, whether to "help my aging father fulfill his wish to die" (one of the examples of fundamental choices that Kronman mentions, at 65), then I would certainly want to know whether I could successfully assist him, and whether I would likely endure prosecution or imprisonment as a result. But, Kronman writes, "that is not all one hopes to learn by means of this imaginative exercise. One hopes also to gain some understanding of the alternatives in another sense, to learn something about the experience of actually committing oneself to them." (69) From this proposition, Kronman develops his argument for two critical virtues of deliberation, sympathy (to understand and feel the attraction of the various lives that might flow from my choice) and detachment (to be able to stand back and judge among those lives). Without "entertaining with a combination of compassion and detachment the values that define [these alternatives'] internal points of view," one cannot fully understand these choices, any more than a child can understand the internal experience of being drunk. (73)
The case Kronman makes for the value of such deliberation is persuasive, but only to a point. Valuable as such reflection may well be, it may not be what people who have good personal judgment actually undertake when they are making their decisions. Kronman doesn't seek to offer survey research or similar evidence of what good decisionmakers actually do. If we look instead, as I take it Kronman does, to our own sense of how we decide -- not an illegitimate source to rely upon, especially since survey research evidence may be hard to come by -- I suspect that Kronman's detached but sympathetic exploration of the values associated with the lives our choices will open up or preclude simply isn't a central focus of what most people think about when they are making many profound decisions, for at least three reasons.
First, many profound decisions are made in moments where detachment is unattainable. To take an extreme example, people facing the death penalty cannot make detached decisions about whether or not to plead guilty, yet they must choose. Many other choices, often involving much happier emotions and less acute circumstances, also seem intrinsically "attached" rather than detached.
Second, some profound decisions don't seem to turn primarily on future life-visions. Instead, they may turn more on present experience. "Do I want to change my life" is a question that certainly raises issues about what life I might have if I do or don't change this one; but it may turn most on whether I like the life I have right now. Or these choices may turn on issues of morality rather than prediction. Some choices certainly are about shaping one's future life; but others -- such as the example Kronman raised of assisting one's father in ending his life -- seem to have less to do with one's own future life than with the morality of helping someone else end his.
Third, and perhaps implicit in some of what I've said, I suspect that if we ask people (including ourselves) how they make decisions, we won't find, as a matter of fact, that the key element of the process is an effort to imagine their future lives with compassion and detachment. It seems to me, at any rate, that in clinical law teaching about client counseling, the bulk of what lawyers are urged to do with their clients is to help them accurately assemble a full list of the pluses and minuses of each available option. A part of that may be to ask, for example, how the client expects she would feel about a particular choice years later, but I don't think questions like that are usually seen as necessarily the most important ones.
Of course, the counseling lawyer's focus on the prosaic may just be a vehicle for assisting the client to make an ultimate, more profound judgment. Or the focus of both lawyer and client on the prosaic may be a sign that the decisionmaking lawyers and clients engage in (or at least that clinicians have urged lawyers and clients to engage in) is less profound than it ought to be. Or it might even be that the kind of decisionmaking most people engage in, with or without lawyers, is not as profound as it ought to be. Kronman is trying to describe what the virtue of deliberation entails, and he is by no means committed to saying that most people display this virtue very fully; in one of a number of remarks to this effect, he says of practical judgment by politicians: "But it is what every politician who hopes to be a statesman must aim at as his goal, and if its objected that far fewer succeed in this effort than fail, a good reply would be Spinoza's famous observation that 'all noble things are as difficult as they are rare.'" (106)
But I'm not persuaded by that response. Certainly it isn't valid to the extent that, as I've just suggested, some choices are intrinsically un-detached while others are reasonably viewed as involving primarily issues other than future life-visions. Beyond that, though, I find myself just unconvinced that the deliberative focus Kronman highlights is the primary tool for resolving profound life-choices. It seems to me that people in fact make decisions by quite a range of methods, and I think it is quite possible that other questions than the ones Kronman underlines will in fact, for many wise decisionmakers, provide a framing that is equally or more valuable.
To me, what this adds up to is that the case for the proposition that "practical wisdom" consists above all of a combination of detachment and compassion in the envisioning of alternative life-paths simply isn't proven. Why does this matter? Because if lawyers' distinctive virtue is practical judgment, then we need to know accurately what that virtue consists of, so that we can do our best to attain it and (if we're teachers, or mentors, or supervisors) to help others achieve it as well.
I'm not sure that this category actually exists. It may well be that no universally accepted scale of value permits me to measure the relative benefits of, say, liberty versus security. But that doesn't mean that these values are incommensurable for me. I may conclude that for me liberty is more important than security, or that this particular form of security is more important than that particular aspect of liberty. In doing so I have made the incommensurable commensurable, at least for me.
Moreover, Kronman himself ultimately seems to say there is a criterion for making choices among incommensurable values. "The mark of a wise judgment in the personal sphere is its tendency to promote the condition of integrity." (97) But if that is so, then "promotion of integrity" is the scale on which otherwise incommensurable values can all be rated. Not only can incommensurable goods be rated on this scale, but they should be -- assuming that wisdom is what we seek.
But if the subjective experience of true incommensurability is rare, still it may exist; I may not be able to say that liberty is or is not more important than security to me, and so I may be hopelessly uncertain about how to choose between them. So how should I deliberate about them, either in an effort to find commensurability after all or in an effort to make the choice I must make despite not finding any scale of judgment to rely upon?
Kronman answers that "part of what one is attempting to anticipate in imagination are the causal consequences of the various choices one might make." (69) So if I am considering, say, whether to "help my aging father fulfill his wish to die" (one of the examples of fundamental choices that Kronman mentions, at 65), then I would certainly want to know whether I could successfully assist him, and whether I would likely endure prosecution or imprisonment as a result. But, Kronman writes, "that is not all one hopes to learn by means of this imaginative exercise. One hopes also to gain some understanding of the alternatives in another sense, to learn something about the experience of actually committing oneself to them." (69) From this proposition, Kronman develops his argument for two critical virtues of deliberation, sympathy (to understand and feel the attraction of the various lives that might flow from my choice) and detachment (to be able to stand back and judge among those lives). Without "entertaining with a combination of compassion and detachment the values that define [these alternatives'] internal points of view," one cannot fully understand these choices, any more than a child can understand the internal experience of being drunk. (73)
The case Kronman makes for the value of such deliberation is persuasive, but only to a point. Valuable as such reflection may well be, it may not be what people who have good personal judgment actually undertake when they are making their decisions. Kronman doesn't seek to offer survey research or similar evidence of what good decisionmakers actually do. If we look instead, as I take it Kronman does, to our own sense of how we decide -- not an illegitimate source to rely upon, especially since survey research evidence may be hard to come by -- I suspect that Kronman's detached but sympathetic exploration of the values associated with the lives our choices will open up or preclude simply isn't a central focus of what most people think about when they are making many profound decisions, for at least three reasons.
First, many profound decisions are made in moments where detachment is unattainable. To take an extreme example, people facing the death penalty cannot make detached decisions about whether or not to plead guilty, yet they must choose. Many other choices, often involving much happier emotions and less acute circumstances, also seem intrinsically "attached" rather than detached.
Second, some profound decisions don't seem to turn primarily on future life-visions. Instead, they may turn more on present experience. "Do I want to change my life" is a question that certainly raises issues about what life I might have if I do or don't change this one; but it may turn most on whether I like the life I have right now. Or these choices may turn on issues of morality rather than prediction. Some choices certainly are about shaping one's future life; but others -- such as the example Kronman raised of assisting one's father in ending his life -- seem to have less to do with one's own future life than with the morality of helping someone else end his.
Third, and perhaps implicit in some of what I've said, I suspect that if we ask people (including ourselves) how they make decisions, we won't find, as a matter of fact, that the key element of the process is an effort to imagine their future lives with compassion and detachment. It seems to me, at any rate, that in clinical law teaching about client counseling, the bulk of what lawyers are urged to do with their clients is to help them accurately assemble a full list of the pluses and minuses of each available option. A part of that may be to ask, for example, how the client expects she would feel about a particular choice years later, but I don't think questions like that are usually seen as necessarily the most important ones.
Of course, the counseling lawyer's focus on the prosaic may just be a vehicle for assisting the client to make an ultimate, more profound judgment. Or the focus of both lawyer and client on the prosaic may be a sign that the decisionmaking lawyers and clients engage in (or at least that clinicians have urged lawyers and clients to engage in) is less profound than it ought to be. Or it might even be that the kind of decisionmaking most people engage in, with or without lawyers, is not as profound as it ought to be. Kronman is trying to describe what the virtue of deliberation entails, and he is by no means committed to saying that most people display this virtue very fully; in one of a number of remarks to this effect, he says of practical judgment by politicians: "But it is what every politician who hopes to be a statesman must aim at as his goal, and if its objected that far fewer succeed in this effort than fail, a good reply would be Spinoza's famous observation that 'all noble things are as difficult as they are rare.'" (106)
But I'm not persuaded by that response. Certainly it isn't valid to the extent that, as I've just suggested, some choices are intrinsically un-detached while others are reasonably viewed as involving primarily issues other than future life-visions. Beyond that, though, I find myself just unconvinced that the deliberative focus Kronman highlights is the primary tool for resolving profound life-choices. It seems to me that people in fact make decisions by quite a range of methods, and I think it is quite possible that other questions than the ones Kronman underlines will in fact, for many wise decisionmakers, provide a framing that is equally or more valuable.
To me, what this adds up to is that the case for the proposition that "practical wisdom" consists above all of a combination of detachment and compassion in the envisioning of alternative life-paths simply isn't proven. Why does this matter? Because if lawyers' distinctive virtue is practical judgment, then we need to know accurately what that virtue consists of, so that we can do our best to attain it and (if we're teachers, or mentors, or supervisors) to help others achieve it as well.
Saturday, April 3, 2010
Kronman's "The Lost Lawyer" and the meaning of "practical wisdom"
Still thinking about the virtues of judging, I've moved on to Anthony Kronman's The Lost Lawyer: Failing Ideals of the Legal Profession (1993). Kronman writes with elegance and insight, but I am finding myself unpersuaded by his account of the distinctive virtue of lawyers, "practical wisdom." He sets out to identify what practical wisdom is by distinguishing between two kinds of disputes, or questions: those that are questions about means, and those that are questions about ends. (54-55). Kronman would certainly agree that the two can be intertwined, but my first concern is that his account of each seems incorrect.
In this post I'll focus on his description of questions of means. He writes that "the basic point remains that all such deliberation is in essence a kind of counting, and though this may be a more complex activity than is initially apparent, it is clear what its object is and what it means to do it well." (55) Now there are, undoubtedly, problems that can be described in these terms. If I want to invest money in a bond, and one offers a higher rate of return and a greater risk of default than the other, I can calculate which one actually offers the highest predicted return measured in dollars. Perhaps I can even determine, given my life concerns, which spread of possibilities is more valuable to me, not just as a matter of dollars but as a matter of impact on my life plans. A risk of loss may be of more concern to me than a potential of gain -- I may, in other words, be "risk averse." Even at this point I may have left the realm of "counting," and entered a less quantifiable domain, but let me put that aside. Many problems of means are indeed problems of calculation, though those calculations may be hard to make.
But questions of means frequently require quite a different kind of answer. Here the value of the outcomes is not a puzzle; what is a puzzle, and an acute one, is how to get to those outcomes. This is the question of strategy. With such and such a goal, how can I achieve it? The answer to this kind of question frequently involves predicting the impact of one's own efforts on the actions of others, and it's clear that very quickly the complexity of these predictions can exceed what any current "calculator," human or computer, can thoroughly compute. What's involved here is not a comparison of outcomes and desires, but a tracing of the paths from desire to outcome. Kronman, at least at this point in his argument, seems not to acknowledge the whole sphere of strategy as part of "means-focused" thinking.
If "practical wisdom" is the virtue we recognize in those who best solve problems, then one way to further characterize it is to say that practical wisdom is the virtue central to solving the kinds of problems we characteristically face. (There might be another virtue central to solving certain other kinds of problems, and those other problems might even be the most important ones, but practical wisdom would be what we need for solving our characteristic problems -- the practical run of problems, one might say.) If that's so, then it seems critical to consider whether in actual life the bulk of our problems are either problems of complex calculation of the value of particular outcomes, or problems of strategy. If these two kinds of "means" problems are the main ones we face, then the central element of a practically, or pragmatically, defined "practical wisdom" will be the ability to solve these. I am not sure whether these are the main kinds of problems we face, and I'm not sure how one could ever determine if they are or not, but I do feel confident that these kinds of problems make up a very substantial portion of the difficult situations we actually encounter in life.
But while Kronman values the ability to solve counting problems, the ability to make judgments about means is not the one Kronman focuses upon, for he appears to devote most of his effort to understanding the ability to solve problems of ends. I'll turn to this aspect of deliberation in my next post.
In this post I'll focus on his description of questions of means. He writes that "the basic point remains that all such deliberation is in essence a kind of counting, and though this may be a more complex activity than is initially apparent, it is clear what its object is and what it means to do it well." (55) Now there are, undoubtedly, problems that can be described in these terms. If I want to invest money in a bond, and one offers a higher rate of return and a greater risk of default than the other, I can calculate which one actually offers the highest predicted return measured in dollars. Perhaps I can even determine, given my life concerns, which spread of possibilities is more valuable to me, not just as a matter of dollars but as a matter of impact on my life plans. A risk of loss may be of more concern to me than a potential of gain -- I may, in other words, be "risk averse." Even at this point I may have left the realm of "counting," and entered a less quantifiable domain, but let me put that aside. Many problems of means are indeed problems of calculation, though those calculations may be hard to make.
But questions of means frequently require quite a different kind of answer. Here the value of the outcomes is not a puzzle; what is a puzzle, and an acute one, is how to get to those outcomes. This is the question of strategy. With such and such a goal, how can I achieve it? The answer to this kind of question frequently involves predicting the impact of one's own efforts on the actions of others, and it's clear that very quickly the complexity of these predictions can exceed what any current "calculator," human or computer, can thoroughly compute. What's involved here is not a comparison of outcomes and desires, but a tracing of the paths from desire to outcome. Kronman, at least at this point in his argument, seems not to acknowledge the whole sphere of strategy as part of "means-focused" thinking.
If "practical wisdom" is the virtue we recognize in those who best solve problems, then one way to further characterize it is to say that practical wisdom is the virtue central to solving the kinds of problems we characteristically face. (There might be another virtue central to solving certain other kinds of problems, and those other problems might even be the most important ones, but practical wisdom would be what we need for solving our characteristic problems -- the practical run of problems, one might say.) If that's so, then it seems critical to consider whether in actual life the bulk of our problems are either problems of complex calculation of the value of particular outcomes, or problems of strategy. If these two kinds of "means" problems are the main ones we face, then the central element of a practically, or pragmatically, defined "practical wisdom" will be the ability to solve these. I am not sure whether these are the main kinds of problems we face, and I'm not sure how one could ever determine if they are or not, but I do feel confident that these kinds of problems make up a very substantial portion of the difficult situations we actually encounter in life.
But while Kronman values the ability to solve counting problems, the ability to make judgments about means is not the one Kronman focuses upon, for he appears to devote most of his effort to understanding the ability to solve problems of ends. I'll turn to this aspect of deliberation in my next post.
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.
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.
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.
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.
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.
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