That’s a sensitive question to put to a judge.
– Richard Posner (see below)
This is the fourth in the “Posner on Posner” series of posts on Seventh Circuit Judge Richard Posner. The first installment can be found here, the second one here, and the third one here.
Has any sitting appellate jurist ever entertained a wide swath of questions from a journalist, fellow judges, and law professors? The answer: Never, to the best of my knowledge. But if one had to pick such a jurist, Richard Posner would surely be (and is) that person. True to his realist image, he answered all of the questions posed to him and did so promptly and, for the most part, without reservation.
In order to get a range of views from different perspectives, I invited a number of noted legal figures to pose questions to Judge Richard Posner. Twenty-four responded; they are:
Thomas Ambro
William Baude
Ryan Calo
Erwin Chemerinsky
Lawrence Cunningham
Michael Dorf
Barry Friedman
David Hoffman
Yale Kamisar
Judith Kaye
Hans Linde
Adam Liptak
Andrea Mays
Linda Mullenix
Robert O’Neil
Frederick Schauer
David Skover
Daniel Solove
Geoffrey Stone
Kellye Testy
David Vladeck
Eugene Volokh
Kathryn Watts
Adam Winkler
Their questions, organized into 26 topics, are set out below followed by Judge Posner’s replies. Hyperlinks have been added where useful. Note: Some links will open in Firefox or Chrome but not in Safari. –RKLC
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I. Clerking for Justice Brennan
Professor Robert M. O’Neil: Perhaps your most remarkable contribution as a Supreme Court clerk for Justice William Brennan was the total change in the status of Gray v. Sanders (1963). You initially drafted an opinion for the Justice that would have resulted in a decisive reversal of the Ninth Circuit ruling. But you quickly learned that the Court had preliminarily voted 7-2 to affirm. On the basis of your persuasive draft opinion, however, Justice Brennan promptly asked the Chief Justice to reassign the case. That soon resulted in a 7-2 reversal with only Justices Clark and Harlan dissenting. Two intriguing questions arise:
Given the oral argument and the statutory context, why were you so sanguine about the prospects for reversal?
And how did you eventually persuade Justice Brennan and four of his colleagues to reach a wholly different result?
[RC: Professor O’Neil clerked with Justice Brennan when Posner did.]
Judge Posner:
I wasn’t. I was under the mistaken impression that the Court had voted to reverse.
I didn’t use any persuasion. When Justice Brennan read my opinion, he said it was persuasive and he’d tried to persuade the Court to change its vote from affirm to reverse. His persuasive efforts must have been effective, though I don’t recall his having said anything to me about them.
Professor Robert M. O’Neil:
Among the Supreme Court opinions to which you made substantial and invaluable contributions, how would you appraise the Philadelphia National Bank (1963) case?
To what extent did Justice Brennan or other members of the Court (or fellow clerks, or for that matter teachers like Harvard Professor Donald Turner) shape your views on those issues?
Judge Posner:
Of the opinions I worked on, that was my favorite. I think it was influential on antitrust law and also convinced me to specialize in antitrust, which I did for the early part of my career, following the clerkship.
The principal influence was Derek Bok, then a professor at Harvard Law School and later, of course, dean of the law school and later still president of Harvard University. He had written an important article on merger antitrust law, part of which I had cite-checked when I was on the Harvard Law Review. The article stuck in my mind and played a crucial role in my thinking about the Philadelphia Bank
Justice William Brennan
II. Judging Justice Brennan
Professor Geoffrey Stone: You served as a law clerk to Justice William J. Brennan, Jr., a half-a-century ago. With the benefit of hindsight, how would you assess his contributions as a Justice?
Judge Posner: Obviously, he was very influential, in part because of his warm personality and willingness to compromise. I think Warren relied heavily on him. A number of the Warren Court’s most important decisions were his.
III. Jurisprudence
Professor Frederick Schauer: When you were a law student, Lon Fuller was a major figure at the Harvard Law School, and only a few years earlier his published debate with H.L.A. Hart was a major event at the school and in legal scholarship generally.
Could you comment on your views about the contemporary state of Anglo-American jurisprudence, whether that state is different from what it was fifty years ago, and, if different, what might account for the change?
Judge Posner: I never met or had a class from Fuller, and never cottoned to his views, and I don’t remember whether I ever read that debate. I never took a course on jurisprudence and I don’t think I had any interest in it. As an academic I became interested in it and wrote about it.
I like your work in jurisprudence, and that of Neil Duxbury and a few others, but much of the jurisprudence literature I find rather sterile. I found Ronald Dworkin’s approach unconvincing; likewise with H.L.A. Hart’s. I love the legal realists, above all Holmes, but also John Dewey, Jeremy Bentham, of course, Hans Kelsen, and Richard Rorty (not an exhaustive list), though law was far from a major interest of Dewey and Rorty.
IV. Law in a Globalized World
Judge Judith Kaye (ret):
What is the impact of our radically globalized world on the business of the U.S. courts? How is our jurisprudence, our decision-making process, in any way influenced by the cultural diversity of the international issues we increasingly face?
In that connection, what is the impact of the increased use of alternative dispute resolution mechanisms in international matters, inevitably still requiring resort to our courts?
Judge Posner:
We get more cases involving foreign and international law, but I think the influence of foreign legal practices on our jurisprudence and decision-making processes is slight. We continue to resist inroads into the adversary system. I think that resistance is a big mistake, but I also think it’s a mistake to look to foreign judicial decisions for guidance to how we should deal with issues such as capital punishment, abortion, and international human rights. I think one has to have a deep understanding of a foreign culture in order to be comfortable with borrowing a foreign country’s law.
I don’t know; I haven’t studied the issue, and have only a few cases.
V. Law & Economics
Professor Michael Dorf: I detect in your academic work (and to a lesser extent your work as a judge) a gradual drift from an economic analysis of law to pragmatism more broadly. Do you agree with that assessment, and if so, what do you think accounts for it?
[RC: Professor Dorf wrote the biographical entry on Judge Posner for the Yale Biographical Dictionary of American Law (2009).]
Judge Posner: You’re correct. It is partly a result of the inroads that psychology has made on economic analysis, partly a result of the economic profession’s failure to understand finance and monetary policy in the period leading up to the crash of 2008, and (relatedly) the revelations of unexpected extensive greed and corruption in American business, not limited to the financial industry.
Professor Ryan Calo: You are famously skeptical of the idea that the law should protect the efforts of market participants to conceal information about themselves. But the beauty of markets lies precisely in their ability to facilitate transactions between parties with wildly disparate backgrounds, tastes, and views — people who otherwise would avoid one another, but come together on the basis of a willingness to pay or receive a particular price.
How do you respond to the contention that a world without a meaningful degree of privacy in such situations would be a world full of balkanized, and hence deeply inefficient, markets?
Posner on Privacy
Judge Posner: I’m not opposed to legal protection of privacy. But I do regard privacy as a common means by which people present a misleading impression of themselves, often deceiving the people with whom they deal, either personally or in transacting. So I think we must be careful not to overprotect privacy.
Justice Hans A. Linde (ret.): You are widely known for linking law and economics and for advocating a pragmatic jurisprudence. These seem to pose two problems for a federal judge:
Federal cases often arise from acts of Congress, not judge-made common law. What should a judge do when an enactment plainly places some people’s non-economic demands over the economic interests of the majority?
Other disputes are between citizens of different states (or nations) that may have different legal answers to the disputed issue. How should a federal judge choose which state’s law applies to the case? That is, should a judge choose the laws of the state that is economically preferable, or is the choice prescribed by law?
Judge Posner:
If a statute is clear, and constitutional, then I am bound. But the statutory provisions that get involved in appellate litigation very often are unclear, and then the judge has considerable freedom to select the interpretation that makes the most sense, though it won’t always be an economic sense.
Conflict of law rules seem to me readily understandable in economic terms. If one thinks of the reasons for applying one state’s law rather than another’s, they generally have to do with which state has the greater interest in regulating the activity that gave rise to the suit. That’s the basis of lex loci delicti, which continues to be a sound doctrine that has largely survived modern loosey-goosey conflicts doctrine.
VI. The Record of a Case
Professor Frederick Schauer: You tend to go beyond the record, the briefs, and oral argument more often than most appellate judges, and you have noted that you have been criticized for it. Could you explain your practice, explain the criticism, and explain why you think the criticism misses the mark?
Judge Posner: I find that the briefs and arguments, and lower-court opinions, very often do not answer the questions that I think are important to a sound understanding of the case. So, I look for the answers, often by an Internet search. I tell lawyers if you don’t like me doing that, do it yourselves. I do try to be sensitive to risk of error in judicial fact research. I understand the criticism, because the lawyers want to control the case. They invoke the glories of the adversary system. I think the adversary system is overrated. Not that I want to convert to the inquisitorial system that prevails in Europe (except the U.K.) and most of the rest of the world, but I want to see the adversary system taken down a peg. I am a big fan of Fed. R. Evid. §706, which allows a judge to appoint his own expert witness, as opposed to having to depend entirely on party experts.
VII. Experiential Knowledge
Judge Thomas Ambro: In a recent ABA Journal interview with Joel Cohen you noted that you were “bothered by the fact that we judges often don’t know enough about a case to decide it sensibly, because often all we know is what the lawyers tell us, which is often very little. And when we don’t have enough knowledge to decide a case in an informed way, we necessarily fall back on how we ‘feel’ about the case.”
In light of those comments, do you think it is a good idea for judges to rely at times on their past experiences (as a judge) and “read between the lines” when parties fail to provide the relevant information? Or must judges categorically refrain from this type of decision-making?
Judge Posner: I think experience is actually more important for sound judicial decision-making than analytic acuity, that often indeed we judges don’t have enough knowledge to decide a case in a well-informed way just based on what the lawyers and the lower court or agency and doctrine tell us, that since our primary and inescapable duty is to decide the case we have to reach out for additional sources of information and often fall back on intuition or “feel” based on experience.
VIII. The Future of Judging
Posner on the Value of Legal Doctrine
I think the role of legal doctrine in judicial decisions is considerably overrated.
Professor Daniel Solove: Do you think that judging will change in the future? Holmes predicted that science would one day hold greater sway in the law, but it has been slow to penetrate law, which still remains largely governed by assumptions not backed up with real empirical evidence. (The great ones like Justice Holmes are also famous for their literary style.) But would the great judge of the future be a person of science, who decides cases by looking to the hard facts, studying empirical evidence, deciding cases more like a researcher would?
[RC: Professor Solove is the co-author of “Can Pragmatism Be Radical?: Richard Posner and Legal Pragmatism,” Yale Law Journal (2003).]
Judge Posner: Judging from my law clerks, young lawyers are increasingly likely to have strong backgrounds in science or technology, and that will eventually affect judging. I hope that will give decision-making a more rigorous empirical basis.
IX. Ideology & Judging
Professor Barry Friedman: You’ve written a great deal about ideology and judging. I’ve long been of the view – reflected in a course-book on Judicial Decisionmaking I’m co-authoring — that there are various features of our judicial system that mitigate the effects of ideology. These range from the fact that most cases of significance are decided ultimately by more than one judge, to panel effects on collegial courts, as well as the need to negotiate over opinions, to constraints imposed by the other branches, to the fact that many cases — particularly in private law — are less ideological, etc.
But as I came to the end of teaching this course for the first time this past semester, I found myself more troubled by ideology’s impact on judging than I had been in a long time. Here are two specifics that reflect my concerns:
First, in some important set of salient federal cases, at least in recent times, judges’ votes as to disposition can be explained largely by one variable: the party of the appointing president; and
Second, there are plenty of cases, including those raising issues that fall into the “first” category, that don’t get appealed or get summary treatment on appeal, meaning the case is resolved by one judge.
Either or both of these leave me disquieted about the judicial system. Can you put me at ease? Or forget about me – what would you offer as a defense of the judicial system in light of these concerns?
Judge Posner: As one moves up the judicial hierarchy, from district court to Supreme Court (in the federal system), the cases become more difficult, as the easier cases are resolved at a lower level. When cases are difficult, the judges, lacking scientific or other rigorous grounds of decision (law is no science), necessarily fall back on their priors, which include ideology along with temperament, personal and career experiences, extra-judicial knowledge, religious beliefs, and so forth. Federal cases are becoming more difficult (or I’m slowing down—one of the two), so the priors are playing a larger role, including ideology. The society is increasingly politicized, and this certainly shows up in the judiciary.
X. Judging, Judicial Opinions & Judicial Decision-Making
Professor Robert M. O’Neil:
Given the process by which appellate opinions are typically drafted (whether primarily or wholly by law clerks or occasionally at least in part by the judge him or herself), how do you explain your own clear preference for self-crafted judicial statements?
And to what extent did your own experience with Justice Brennan as a mentor shape your current approach to the drafting process?
Judge Posner:
I like to write, and edit my writing, but I don’t like to edit other people’s writing, which I used to do a lot of when I was a journal editor. That’s the selfish answer. But I also think that clerk-written opinions tend to be inauthentic, dull, overlong, and excessively formalistic, though this certainly is not universally true. Not only are there many brilliant law clerks, but there are many judges who through painstaking editing of their clerks’ drafts produce really excellent opinions. But that’s an inefficient use of staff. Better for the judge to write his own opinion drafts, and have the law clerks do research and criticize and edit the judge’s opinion drafts. A judge who writes his own opinions will achieve speed, whereas law clerks, as inexperienced opinion writers fearful of making a bad impression on the judge, will waste a lot of time as opinion writers.
My recollection is that he left the drafting to us (Bob O’Neil was my co-clerk); I don’t recall his doing much in the way of either guidance before we drafted or editing afterwards. I am told he did more editing and sometimes even drafted opinions when he wasn’t satisfied with the law clerks’ work.
Professor William Baude: In your experience, how does judicial decision-making differ in different societies, and why might societies choose to have different kinds of judicial decision-making?
Judge Posner: I don’t know much about foreign judiciaries, except the U.K.’s. I assume judicial decision-making varies primarily with the structure of the judiciary. In the inquisitorial systems the structure is bureaucratic; judges are appointed right after or shortly after graduation from law school (more precisely from a college major in law) to a junior judicial post and are promoted in accordance with how they are evaluated by their superiors. Procedure is informal, documentary evidence is strongly preferred, deference to legislatures greater because the legislators tend to be better disciplined. But these are just impressions.
XI. Judicial Writing Style
Professor Daniel Solove: Has the quality and style of judging (or means of reasoning or ways of writing opinions) changed in the past few decades? Have you noticed any trends?
Judge Posner: I think opinions have become longer, more formalistic, and more uniform, also less colorful and less individual, as a result of the near-universal delegation of opinion writing to law clerks. The steady decline in the literary culture in America, and of knowledge of grammar, also show.
Professor Kathryn Watts: One of your opinions on administrative law — a case involving the containment of exotic animals, such as lions, tigers and ligers, on a farm in Indiana — is often used in administrative law courses when interpretive rules are studied. The opinion itself is not at all ground-breaking, but the facts as you describe them in the opinion are fun and colorful, making the sometimes dry subject of “interpretive rules” more interesting and accessible to students.
Do you ever purposefully set out to write an opinion in a way that will maximize the teachable value of the opinion or the accessibility of the opinion to non-lawyers?
And as someone who both writes judicial opinions and teaches law students, what kind of emphasis do you believe judges should place on speaking to and educating the general public when writing opinions?
Judge Posner:
I can’t resist featuring curious or amusing facts in my opinions. And I do try to make the opinions as simple as possible, not so much expecting them to be read by non-lawyers as believing that really law is very simple (not a science, as I keep emphasizing) and that generally the best one can be said for a decision is that it’s sensible. That should be explicable in a way that a layperson can understand. I do not think about writing for the casebooks, in part because I don’t know any more what casebook editors are looking for.
It’s unrealistic for judges to try to educate the general public. I don’t think the general public is interested in anything about judicial opinions except who won the case. But I think a clearly and simply written opinion is more helpful to colleagues, a higher court, professors, and students than one that uses legal jargon.
XII. Who Owns a “Judge’s Papers”?
Professor Kathryn Watts: I recently wrote an article arguing that federal judges’ working papers—meaning their internal chambers’ papers and electronic correspondence and documents relating to cases and other official court business—should no longer be treated as the property of individual judges but rather should be viewed as governmental property.
Do you see any reason why judges’ working papers and electronic correspondence and documents, which are created by governmental officials in furtherance of official governmental duties and often while using governmental resources and facilities, should continue to be treated as the private property of individual judges?
And do you have plans for what will become of all of your own chambers’ papers and electronic correspondence and documents after you retire or leave the bench?
Judge Posner:
I didn’t know it was our private property! I agree it should belong to the government and I have always assumed it did belong to it. I certainly wouldn’t claim any property right in the paper or electronic documents in my case files or archived e-mail. However, I think whoever the custodian is should protect certain confidences, especially communications between judges.
No plans.
[RC: Posner’s papers are archived at the University of Chicago Regenstein Library.]
XIII. The Best & The Worst
Professor Yale Kamisar: In the area of constitutional criminal procedure, which judge (or judges) do you think has articulated the most pragmatic and rights-sensitive approach to this area of our jurisprudence? And why?
Judge Posner: I’m not sure “pragmatic” and “rights-sensitive” quite go together, as the latter term suggests a thumb on the scales. I wouldn’t put rights above security. Indeed my personal leanings are toward security, except that I think federal sentences are generally too long. My favorite judge in constitutional criminal procedure is Robert Jackson, who seems to me to have been extremely intelligent, experienced, and balanced in that field (as indeed in other fields). I’m not sure I have any other favorites.
[RC: Some of Justice Jackson’s criminal procedure opinions include: Frazier v. United States (1948) (dissenting), Watts v. Indiana (1949) (concurring & dissenting in part), Brinegar v. United States (1949) (dissenting), Shepherd v. Florida (1951) (concurring in result), On Lee v. United States (1952), and Irvine v. California (1954) (separate opinion).]
Posner’s Take on the Supreme Court
Well, I don’t like the Supreme Court. I don’t think it’s a real court. I think of it as basically . . . it’s like a House of Lords. It’s a quasi-political body. President, Senate, House of Representatives, Supreme Court. It’s very political. And they decide which cases to hear, which doesn’t strike me as something judges should do. [Source here]
Professor Geoffrey Stone: What do you think is the “worst” Supreme Court decision of the past decade, and why?
Judge Posner: That’s a sensitive question to put to a judge. Heller v. District of Columbia and McDonald v. Chicago for sure, and going back a few years Clinton v. Jones and Chevron v. Natural Resources Council.
Professor Eugene Volokh: Which Free Speech Clause precedents of the last 60 years do you think are the most misguided, and which do you think are especially sound? And why?
Judge Posner: The free-speech clause of the First Amendment has no real content, owing to its brevity, and society has changed too much since 1791 to enable any guidance to be obtained from practices relating to speech in that era. The idea that free speech protects burning the American flag, spending money to influence elections, harassing abortion clinics (the recent McCullen decision) (to choose just three of many possible examples) has no constitutional or pragmatic basis that I can see, and just reflects the political preferences of particular Justices.
[RC: A future post will be devoted to the First Amendment and freedom of expression. Among other things, in that post Judge Posner comments on the campaign finance cases.]
Professor Andrea Mays: Seen through the lense of the law and economics movement, what are the two best decisions the Supreme Court has made in the past decade?
Judge Posner: A good question, to which I don’t have a good answer.
XIV. The Life & Mind of a Public Intellectual
Professor Michael Dorf: For a judge, you are very active as a public intellectual, but are there topics you would choose to write about if you were not a sitting federal judge?
Judge Posner: I would be more outspoken about what seem to be serious failings of American government, including the judiciary.
Dean Erwin Chemerinsky: You have written dozens of books, thousands of articles and judicial opinions. Which do you think is most important and why? If there is just one that you could have most widely read, which would it be?
Judge Posner: I suppose my treatise Economic Analysis of Law, now in its ninth edition, is my most important book, in terms of influence. I couldn’t pick out a most important article or most important opinion, because there are too many for me to remember all of them (hundreds of articles, as you say, and approximately 3000 judicial opinions).
XV. Constitutional Rights & Business Corporations
Professor Adam Winkler: Business corporations must have some constitutional rights, such as property rights, due process, and press freedom. Yet corporations do not have the right to vote or to run for office. Conceptually speaking, and current doctrinal law aside, what considerations ought to be paramount in determining which constitutional rights business corporations should have and to what extent?
Judge Posner: I don’t know whether corporations should have any constitutional rights, although in truth I’ve never thought about the issue. I should think that the constitutional rights of persons employed by, owners of, creditors of, etc. would be adequate to protect legitimate business interests. But as I said, I haven’t thought about the question.
XVI. Antitrust Law
Professor Andrea Mays: Do you think the majority got it right in Standard Oil Co. of New Jersey v. United States (1911)? How would you have decided the case?
Judge Posner: Yes. The Standard Oil Trust was a monopoly, and there was no economic justification for it. Its constituent companies did just fine when the trust was dissolved.
[RC: For a recent opinion in the antitrust field, see Judge Posner’s opinion in Motorola Mobility LLC v. Au Optronics Corp, et al (Nov. 26, 2014). News item: Jonathan Stempel, Fox News, Nov. 26, 2014]
XVII. Class Actions
Professor Linda Mullenix: Regarding the moldy washing machine cases, many class action plaintiffs’ attorneys have now seized upon your decisions in those cases to assert that it is entirely acceptable to assert no-injury claims, and that the no-injury class action is permissible and here to stay.
Did you really mean to announce that individual claimants with no injuries can pursue class claims? If so, how does this square with constitutional standing principles?
Judge Posner: I don’t understand the question. Of course there has to be injury. That doesn’t mean every class member can establish injury. But class actions wouldn’t be feasible if the injury of every class member had to be established before the court decided whether the case was suitable for class action treatment.
Professor David Vladeck: Many believe that much of the most interesting work you have done as a judge is your work on law and economics. For example, you wrote an opinion overturning class certification in the Rhone-poulenc Rorer (1995) case because you thought aggregate litigation placed too much pressure on defendants to settle. Still, nothing in Rule 23 really embraced that consideration, though your opinion was nonetheless quite influential. Now that you have had time to reflect on that decision, do you have any second thoughts?
Judge Posner: I adhere to my view. I thought the value of my opinion was that it helped stimulate the promulgation of Rule 23(f), which allows appeals from grant of class certification, since once certification is decreed the pressure on the defendant to settle will usually be overwhelming.
Professor Linda Mullenix: At a 2014 symposium on class action litigation at George Washington University Law School, Elizabeth Cabraser gave the keynote address in which she described how your class action jurisprudence had evolved from being the arch-villain of class litigation (e.g. Rhone-poulenc Rorer) to your being the hero of the plaintiffs’ class action bar.
How do you square your former views on class litigation with your recent spate of class action decisions favoring class certification of products liability and other mass tort cases? Why should an efficiency rationale trump all other class action considerations?
Judge Posner: I don’t see any conflict. I have stressed in my recent decisions that the class action device is susceptible to abuse by the class action bar and there could also be collusion between class counsel and defendants. But I believe that class actions play a very important role in law enforcement.
XVIII. Mandatory Forum-Selection Clauses
Professor David Hoffman: Experts in Delaware law are focused this year on the limits, if any, of Boilermakers Local 154 Retirement Fund v. Chevron Corp. (2013), which upheld mandatory forum selection through corporate bylaws. Some believe that the next step will be arbitral clauses built into firms’ bylaws, limiting or eliminating class-wide derivative suits, and (arguably) reducing the likelihood of deterrence of corporate abuse and fraud. What do you think are the primary legal and economic considerations in such cases?
Judge Posner: I worry that consumers and employees don’t understand such clauses.
Professor David Vladeck: There is an argument that ubiquitous mandatory arbitration of cases in entire areas (employment, civil rights, etc.) deprives the federal courts of their rightful role as interpreters of federal statutes. It has also, at least arguably, decreased the workload of federal courts. What are your views about whether these are healthy trends for the federal courts?
Judge Posner: I suspect unhealthy. I don’t think most federal judges are overworked.
Professor David Vladeck:
Absent fraud, duress, and the like, do think that there are limits to waiver? The Seventh Circuit has upheld very broad waivers in employment and consumer contracts, including the right to sue, the rights to a jury trial, and to punitive damages. Where are the limits, if any, on waiver-by-contract, especially in contracts that are take it or leave contracts?
In this regard, do you worry that contract law will displace statutory and common law doctrines?
Judge Posner:
I think judges have to be alert to the limited understanding of legal forms by laypersons.
Not total displacement, but inroads yes.
XIX. Judging Journalists
Adam Liptak: Your 2003 opinion in McKevitt v. Pallash is viewed by most press lawyers as a turning point in what had until then been a reasonably successful campaign to persuade courts that the First Amendment, at least sometimes, protects journalists from the compelled disclosure of their confidential sources. As you pointed out, that campaign was based on an ambitious reading of the Supreme Court’s 1972 decision in Branzburg v. Hayes. “A large number of cases conclude, rather surprisingly in light of Branzburg,” you wrote, “that there is a reporter’s privilege.”
But these same press lawyers often overlook three other features of your opinion. First, the McKevitt case did not involve confidential information. Second, where confidential information is involved, you said it is “obvious that the newsgathering and reporting activities of the press are inhibited when a reporter cannot assure a confidential source of confidentiality.” Third, you wrote that “the Constitution is not the only source of evidentiary privileges” and “there might be a federal common law privilege for journalists that was not based on the First Amendment.” Judge David Tatel embraced such a common-law privilege in a 2005 concurrence.
What do you think is the right way to balance the competing interests of the justice system in obtaining evidence and of the press in obtaining information?
What sources of law should judges look to in weighing the question?
Judge Posner:
I don’t think it’s possible to generalize. I think the judge just has to balance the competing interests. I know that’s mushy, but it’s the best I can do.
I don’t think there is a source or sources. There are competing interests that have to be adjusted to each other. A lot of law is like that. I think the role of legal doctrine in judicial decisions is considerably overrated.
XX. The Fourth Amendment Exclusionary Rule
Professor Yale Kamisar: Many years ago, before becoming a federal judge, you wrote an article forcefully criticizing the Fourth Amendment exclusionary rule. Do you still feel the same way about the search and seizure exclusionary rule today?
Judge Posner: Yes, especially with the emergence of really effective federal tort remedies for unreasonable searches or seizures. That is far superior to excluding what is often highly probative evidence.
[RC: For a listing of some of Judge Posner’s judicial opinions re the exclusionary rule, go here (and search “exclusionary rule”)]
XXI. Eleventh Amendment Doctrine
Professor David Skover: The Supreme Court’s 11th Amendment doctrine has tottered on a delicate balance at least since the ruling in Seminole Tribe of Florida v. Florida (1996) narrowed the powers of Congress to abrogate state sovereign immunity by exercise of its Article I powers. Subsequent decisions have appeared theoretically confusing and doctrinally inconsistent. For example, consider the abrogation effected “in the plan of the Convention” recognized for the Article I Bankruptcy Clause [Central Virginia Community College v. Katz (2006)] versus the refusal to validate abrogation under the Article I Commerce Clause [Seminole and Alden v. Maine (19990] and the Progress of Science and Useful Arts Clause [College Savings Bank (1999)].
Conceptually speaking, where do you come out on the Congress’s powers to abrogate state sovereign immunity by its exercises of Article I powers? Please explain.
Judge Posner: I haven’t thought about your question. I find it a little difficult to take seriously the notion of state “sovereign” powers. I recognize that the Constitution gives the states some attributes of sovereignty, but they have to be very limited to enable the society to function effectively. This is a single country to an extent it was not when the Constitution was originally ratified. The Fourteenth Amendment greatly, and I think rightly, curtailed state sovereignty.
XXII. Article III Standing Doctrine
Professor David Skover: The Supreme Court’s contemporary standing doctrine — owing much to Justice Scalia’s separation-of-powers theories — has been criticized by many legal scholars (and sometimes subverted by lower-court judges) given its skewing effects in public law cases. Among other objections, the standing doctrine operates to the advantage of the targets of administrative agency action, who can typically prove personal injury in fact, and to the disadvantage of third-party beneficiaries of administrative regulation, whose risk-defined and probabilistic harms are often viewed as mere public-interest claims constituting generalized grievances.
What is your perspective on the workings of the contemporary standing doctrine? Is it appropriately designed to ensure justice for rights claimants in public law cases, whether constitutional, statutory, or administrative in nature?
Judge Posner: I haven’t encountered the problem. I’ve written opinions [RC: see, e.g., American Bottom Conservancy v. U.S. Army Corps of Engineers] saying that probabilistic injury suffices for standing, and I can’t recall cases in which I thought the standing doctrine impeded access to the courts by someone having a tangible interest in litigating a case. Maybe I’ve forgotten, though.
XXIII. The Law of Contracts
Professor David Hoffman: In 2003, your son argued in the Yale Law Journal that the “economic analysis has failed to produce an ‘economic theory’ of contract law, and does not seem likely to be able to do so.” Do you agree with Eric, and, if so, how would you describe the current state of contract doctrine in the United States, if such a thing exists?
Judge Posner: I’ll have to ask him what he meant! As far as I’m aware, the common law of contracts is economically sound.
Professor Lawrence Cunningham: Challenges continue to mount about how rational people behave in fact, in both contracting activities and conduct that can produce disputes involving torts. Should law reflect behavioral reality or is assuming rationality nevertheless the correct stance for contract law and tort law to take?
Judge Posner: Yes, we have to deal with behavioral reality. Economics will have to adjust to the inroads that psychological research has made into the rational choice model. The model is too severe.
XXIV. Legal Education
Posner on Legal Education
Legal education today is too theoretical.
Dean Kellye Testy: There are demands for increased clinical and skills education for J.D. students. While these are costly forms of education, there is at the same time immense pressure to reduce the cost of legal education. How do you anticipate this tension will/should be resolved?
Judge Posner: I think we need a lot more than that. Legal education today is too theoretical, and there is too little utilization of clinical methods where they are most needed, for example in teaching evidence and procedure, both areas where the federal rules (the usual focus of those courses) do not capture the reality of the courtroom.
Dean Kellye Testy: Legal education in the U.S. has been very J.D. centric. Do you anticipate that U.S. law schools will increasingly offer other forms of legal education? If so, how do you see that affecting the strength of J.D. education?
Judge Posner: I would like to see the law school curriculum include a lot of non-legal material (not necessarily taught in the law school) that should be required for students who don’t have a good technical background.
XXV. Legal Scholarship
Dean Kellye Testy: Legal scholarship is largely “unfunded” in the sense that there are very few grants available for legal scholarship (unlike, say, medical research). How do you think the pressure on costs of legal education will affect subsidization of the scholarly work of law professors?
Judge Posner: I don’t know.
XXVI. Career Moves
Professor Lawrence Cunningham: Our audience on this blog includes a large number of aspiring or recently appointed law professors.
What career advice do you have for them?
Which, if any, of your career moves would you like to have to do over again?
Judge Posner:
I would suggest eschewing constitutional law, an overcrowded field, excessively politicized and theorized.
None, actually.
The next Q & A post in the Posner on Posner series will be the fifth one and will appear this coming Monday; it is titled “On Legal Education.” The one following that is “On Judicial Reputation: More Questions for Judge Posner.” And three posts follow thereafter.